Nungaray v. Pleasant Val. Lima Bean Growers & WarehouseAss'n

• Decision Date: 28 June 1956
• Citation: 142 Cal.App.2d 653,300 P.2d 285
• Court: California Court of Appeals Court of Appeals
• Parties: Antonio G. NUNGARAY, Plaintiff and Respondent, v. PLEASANT VALLEY LIMA BEAN GROWERS AND WAREHOUSE ASSOCIATION, a Corporation, et al., Defendants and Appellants. Civ. 21424.

Page 285

300 P.2d 285

142 Cal.App.2d 653

Antonio G. NUNGARAY, Plaintiff and Respondent, v. PLEASANT VALLEY LIMA BEAN GROWERS AND WAREHOUSE ASSOCIATION, a Corporation, et al., Defendants and Appellants.

Civ. 21424.

District Court of Appeal, Second District, Division 3, California.

June 28, 1956.

Rehearing Denied July 24, 1956.

Hearing Denied Aug. 21, 1956.

Hunter & Liljestrom and Kenneth H. Clausen, Los Angeles, for appellants.

Neil D. Heily, Oxnaid, for respondent.

VALLEE, Justice.

Appeal by defendants from a judgment for plaintiff entered on a jury verdict in an action for damages for personal injuries alleged to have been sustained as a result of defendants' negligence.

On November 9, 1953 plaintiff, employed by James Brucker, drove a 2 1/2-ton truck loaded with lima beans to the warehouse of defendant Pleasant Valley for the purpose of delivering the beans to the warehouse. The truck had 10 wheels, 2 in front and 8 in the rear; the rear wheels were flexible wheels, i.e., they would be raised above the front wheels if they were on a dump; the body had a bean bed in it made of steel, called a tank. When plaintiff arrived at the warehouse, at the direction of defendant Croker, the warehouse manager of Pleasant Valley, he backed the truck onto a platform at the warehouse where the front end would be elevated by a hydraulic lift so that the beans would slide out of the rear end into a bin just inside the warehouse. Immediately back of the bin and between it and the concrete wall of the warehouse there was a low guard rail along the bean bin made of 1 1/2-inch pipe. Attached to the platform were two 16-inch stationary 'steel-concrete' blocks. Trucks were backed onto the platform until the rear wheels came against the stationary blocks. The parts of the stationary blocks against which the wheels rested were angular shaped so that the tires fit into the blocks. Some trucks unloading at the warehouse had an overhang of the body beyond the rear wheels so that when the front end was raised for unloading the rear would extend too far over the bin. When the truck was such that the rear would extend too far over the bin, Croker placed 2 removable, flat, wooden blocks about 3 or 4 inches wide, 8 or 10 inches long, and about 16 inches high, immediately in front of and against the stationary, angular blocks so as to cause a truck to stand farther ahead on the platform. The wooden blocks were not fastened or secured in any way; they were flat, not angled to fit a tire as were the permanent concrete blocks.

Some time that day, before Croker directed plaintiff to back onto the platform, he (Croker) had placed the 2 flat, wooden blocks in front of the 2 stationary, angular blocks. As plaintiff was backing the truck, he noticed the wooden blocks. They had never been used in unloading the truck he was driving. It had a medium overhang only and could be unloaded without the removable blocks. Plaintiff said to Croker, 'How about the blocks?' Croker told him to 'Just go back,' and he backed the rear dual wheels of the truck against the flat, wooden blocks. Plaintiff testified:

'Q. [By Mr. Heily, attorney for plaintiff]: Now, I believe you testified on cross-examination that the blocks appeared, just before you backed up, to be as they had in the past when you backed in there with other trucks. Did you get out of the truck and inspect them? A. No. I just looked to the back through the door. When you go by the ramp, you notice the blocks over there. You notice everything what is in the way.

'Q. Now, did you particularly notice whether they were in exactly the same position that they are in this photograph designated Plaintiff's 4, or did you pay any particular attention to exactly how they were sloped? A. I noticed the blocks back there. I didn't know whether they were this angle here or this (indicating). I knew that the blocks were back over there, the solid blocks.

'Q. They just appeared to be back by the solid blocks? A. That is right.

'Q. You didn't notice what angle they were tipped? A. No, I didn't.

'Q. And is it then that you mentioned the blocks to Mr. Croker, was it? A. Mr. Croker, I hollered to him, 'How about the blocks there?'

'Q. And he just waved you back? A. Motioned back. * * *

'Q. [By Mr. Clausen, attorney for defendants]: And the only reason then that you ever said anything at all about it, was that you didn't think that they [the wooden blocks] were needed, because the truck wasn't too long? A. They weren't needed. They really weren't needed at all there.

'Q. That is the only reason that you mentioned it? A. That is right.' Plaintiff also testified:

'Q. Now, after you got the truck backed up against the blocks, did you do anything with reference to your brakes? A. You automatically throw your brakes on. You throw your switch off and throw your brakes on your truck and throw your truck in gear. You automatically do it. Nobody instructs you.

'Q. Is that what you did on this particular occasion? A. I put my brakes on and I don't remember if I threw it in gear or not.

'Q. Were the brakes on this particular truck in good working order? A. Very good working order.

'Q. By the 'brakes' I mean the emergency brakes. A. Very good. They have to be good, because you are checked by the State Highway Patrolman. The truck is checked maybe every day, maybe twice a day.'

After plaintiff had dismounted Croker operated hoisting machinery which was controlled by levers just inside the door of the warehouse next to the bean bin and elevated the front end of the platform and the truck to about a 40-degree angle so that the beans would slide out of the rear end of the truck into the bin. After getting out of the truck plaintiff walked around watching the beans unloading.

When the truck tank was almost empty plaintiff obtained a broom from inside the warehouse, went to the rear of the truck, and with one leg over the low pipe railing at the edge of the bean pit and the other on solid ground behind the railing he was going to start climbing into the truck to sweep beans that remained in the truck into the bean pit and 'just going to put up [his] right hand to the tank of the truck to climb on top of the truck when the thing rolled back.' Croker was at the levers at the time. While plaintiff was in the position described, the truck started to move backwards, the rear dual wheels 'all of a sudden' jumped over the wooden and the stationary blocks, rolled back and 'crushed' plaintiff between the rear end of the truck and the concrete wall of the warehouse, causing the injuries of which complains.

Plaintiff testified he relied on and followed the instructions of Croker 'in the unloading operation'; Croker 'was in charge of the ramp [platform] and in charge of everything up there'; he relied on Croker's 'judgment as to what to do'; neither Croker nor any one in charge of unloading operations had ever told him to stay clear of the rear of the truck during unloading operations; it was customary to sweep out the beans as the load 'got down to the point where they were almost finished dumping'; and he at all times in sweeping out the beans climbed over the back of the truck to do it. During the course of a discussion in the absence of the jury the court asked defendants' counsel 'Who was supposed to maintain that place [where the accident occurred]?' Defendants' counsel replied, 'The defendant.' Croker testified he 'didn't make any close inspection of the blocks' as the truck was backing.

The court instructed the jury on the doctrine of res ipsa loquitur. Defendants assign error. They contend the evidence does not warrant in instruction on the doctrine. The doctrine has 3 conditions: 1. The accident must be of a kind which ordinarily does not occur in the absence of some one's negligence. 2. It must have been caused by an agency or instrumentality within the exclusive control of the defendant. 3. It must not have been due to any voluntary action or contribution on the part of the plaintiff. Ybarra v. Spangard, 25 Cal.2d 486, 489, 154 P.2d 687, 162 A.L.R. 1258; Raber v. Tumin, 36 Cal.2d 654, 659, 226 P.2d 574; Seneris v. Haas, 45 Cal.2d 811, 823, 291 P.2d 915. The applicability of the doctrine depends on whether it can be said, in the light of common experience, that the accident was more probably than not the result of the defendant's negligence. Seneris v. Haas, 45 Cal.2d 811, 824, 291 P.2d 915; Burr v. Sherwin Williams Co., 42 Cal.2d 682, 687, 268 P.2d 1041. 'The reason for the application of the doctrine of res ipsa loquitur, and the very hypothesis of the doctrine, is that 'ordinarily the one injured is not in a position to know more than that, by some unusual movement of the instrumentality, he was injured, whereas the one who operates the instrumentality should know and be able to explain the precise cause of the accident'.' Alexander v. Wong Yick, 25 Cal.App.2d 265, 269, 77 P.2d 476, 478. 'In order that a plaintiff be entitled to the benefit of the doctrine of res ipsa loquitur, he need not exclude every other possibility that the injury was caused other than by defendant's negligence (Prosser, Res Ipsa Loquitur in California, 37 Cal.L.Rev. 183, 197-198).' Seneris v. Haas, 45 Cal.2d 811, 826, 291 P.2d 915, 924. 'The requirement of control is not an absolute one. Although, as we have seen, the doctrine will not ordinarily apply if it is equally probable that the negligence was that of someone other than the defendant, the plaintiff need not exclude all other persons who might possibly have been responsible where the defendant's negligence appears to be the more probable explanation of the accident. See Helms v. Pacific Gas & Electric Co., 21 Cal.App.2d 711, 713-714, 70 P.2d 247 (third persons might have tampered with electrolier located on public street); Van Horn v. Pacific Refining & Roofing Co., 27 Cal.App. 105, 108-110, 148 P. 951 (third person might have loosened pipe cap); Prosser, Res Ipsa Loquitur in...