Lostritto v. Southern Pac. Transportation Co.

• Court: California Court of Appeals
• Citation: 73 Cal.App.3d 737,140 Cal.Rptr. 905
• Decision Date: 28 September 1977
• Parties: Robert Gerald LOSTRITTO, Plaintiff, Appellant and Respondent, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant, Respondent and Appellant. Robert Gerald LOSTRITTO, Petitioner, v. SUPERIOR COURT, COUNTY OF SANTA CRUZ, Respondent, SOUTHERN PACIFIC TRANSPORTATION COMPANY, Real Party in Interest. Civ. 37728, 38388.

Page 905

140 Cal.Rptr. 905 73 Cal.App.3d 737 Robert Gerald LOSTRITTO, Plaintiff, Appellant and Respondent,
v.
SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant, Respondent and Appellant.
Robert Gerald LOSTRITTO, Petitioner,
v.
SUPERIOR COURT, COUNTY OF SANTA CRUZ, Respondent,
SOUTHERN PACIFIC TRANSPORTATION COMPANY, Real Party in Interest. Civ. 37728, 38388. Court of Appeal, First District, Division 3, California. Sept. 28, 1977.
Rehearing Denied Oct. 28, 1977.
Hearing Denied Dec. 15, 1977.

[73 Cal.App.3d 742]

Page 907

Boccardo, Blum, Lull, Niland & Bell by Edward J. Niland, San Jose, for plaintiff, appellant and respondent, and petitioner.

[73 Cal.App.3d 743] Morris & Polich by Landon Morris, Los Angeles, Wyckoff & Miller by Stephen Wyckoff, Santa Cruz, for defendant, respondent and appellant, real party in interest.

DEVINE, ^* Associate Justice.

On May 28, 1972, plaintiff minor, then 16 years old, dived from a trestle owned by Southern Pacific Transportation Company into the San Lorenzo River, a stream whose depth fluctuates with the tides of the ocean into which it flows. His neck was broken; he is quadriplegic. He had dived 30 to 40 times from the trestle during the three-day period before the accident. This action charges negligence and willful misconduct against Southern Pacific. The jury gave answers to interrogatories against defendant on these charges and rendered a general verdict for plaintiff in the amount of $3,000,000. ¹ Plaintiff's complaint is based on the proposition that young persons frequently used the trestle as a diving place and that there was a particular hazard because of the fluctuations of depth of the river and that defendant failed to take preventive measures or to warn of the danger.

Willful Misconduct

1] The jury by 10 to 2 vote answered affirmatively the special interrogatory as to willful misconduct on the part of defendant. Following judgment, the court granted a motion for new trial; in respect of willful misconduct, the judge noted in his grounds and specifications that there was newly discovered material evidence which could not with ordinary diligence have been discovered, and that this evidence is material to the issue of willful misconduct of the plaintiff, and that it is reasonably probable that there would have been a different result. The new evidence consists of the declarations of two young men that plaintiff was warned by them and by others, immediately before the dive, that the water was not

Page 908

deep enough and that he had replied that he had been diving all day. This would contradict plaintiff's testimony that he was not warned not to dive and that he did not know the depth of the river. Perhaps, as plaintiff argues, the witnesses did not have sufficient [73 Cal.App.3d 744] information about the depth of the water at the exact place where the dive would occur to give an informed warning; although in fact it seems they were right. But the fact (we assume the witnesses' veracity for present purposes) that they did give a warning from their position in the water and that plaintiff chose to disregard it, is sufficient to support the grant.

Southern Pacific appeals from the judgment and from the order denying its motion for judgment notwithstanding the verdict on the ground that there was no evidence to support the jury's finding of willful misconduct on the part of the railroad and that the conduct of plaintiff bars recovery as a matter of law.

2] The first question is whether, as a matter of law, and contrary to the specific finding of the jury, and the denial of the motion for summary judgment, the railroad must be adjudged to be free of willful misconduct. The subject was defined to the jury in accord with BAJI No. 3.52 (5th ed. 1969) thus: 'Wilful or wanton misconduct is intentional wrongful conduct, done either with knowledge that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results.' That the necessary elements of willful misconduct legitimately could be found, as was done by the jury, appears from these facts: the trestle crossed a river near a popular swimming and bathing area; there was easy access from the beaches to the trestle by a stairway; there was a walkway open to the public across the trestle; there was a railing but no real barrier reaching protruding beams which formed a sort of platform whence plaintiff dived; the practice of diving from the trestle was described by an assistant city attorney as of common knowledge to those who were at the beach, and as having gone on for years; a lifeguard had told a railroad crew about the practice and had received assurance that the word would be passed on, and later that word had gone through proper channels; in about 1961, another lifeguard had told a lawyer at the railroad's San Francisco office that 'people dove and jumped in' from the trestle and in several instances people had been hurt. A roadmaster for the railroad testified at his deposition that when he took charge of the district (in 1973) his track supervisor had told him that 'people normally dive off that bridge,' that 'there is always people diving off of that bridge'; ² in 1963, a 20-year-old marine dived off the [73 Cal.App.3d 745] trestle, broke his neck and was killed, and the incident was reported in the Santa Cruz newspaper.

3] A cyclone fence would have cost but $1,148.00; an irremovable sign, $50.00. There was no sign warning of danger. Considering the elements of notice, actual and constructive, and that knowledge may be proved by circumstantial as well as by direct evidence (Dowden v. Industrial Acc. Com., 223 Cal.App.2d 124, 34 Cal.Rptr. 541; Witkin, Cal. Evidence (2d ed. 1966) Circumstantial Evidence, § 368, p. 327), we conclude that the railroad was charged with notice of a dangerous condition which existed for a long time.

4] It is argued by appellant railroad that because there was but one prior accident (the fatal one) of which the railroad may have been charged with notice, the most that can be said is that there was the possibility of accident, not the probability thereof; wherefore, under the requirement of high probability of harm (Donnelly v. Southern Pacific Co., 18 Cal.2d 863, 869, 118 P.2d 465; Bains v. Western Pacific R.R. Co., 56 Cal.App.3d 902, 128 Cal.Rptr. 778; Givens v. Southern Pacific Co., 194 Cal.App.2d 39, 43--44, 14 Cal.Rptr. 736; Morgan

Page 909

v. Southern Pacific Trans. Co., 37 Cal.App.3d 1006, 1011, 112 Cal.Rptr. 695), a charge of willful misconduct cannot be sustained. This ignores the testimony of the lifeguard that he reported injuries in other cases at the railroad's main office. Besides, the matter of probability is not to be assessed solely by the number of prior accidents, which adventitiously may have been few, but by all of the circumstances. (Dziura v. California Aviation Service, Inc., 4 Cal.App.3d 191, 200, 84 Cal.Rptr. 191; Olea v. Southern Pacific Co., 272...