Perry v. First Corp., No. 17439

CourtCalifornia Court of Appeals
Writing for the CourtFRED B. WOOD; PETERS, P. J., and BRAY
Citation334 P.2d 299,167 Cal.App.2d 359
PartiesStephen J. PERRY, Plaintiff and Appellant, v. FIRST CORPORATION et al., Defendants, Southern Pacific Company, a corporation, and American Can Company, a corporation, Defendants and Respondents, Hartford Accident and Indemnity Company, Plaintiff in Intervention and Appellant.
Decision Date27 January 1959
Docket NumberNo. 17439

Page 299

334 P.2d 299
167 Cal.App.2d 359
Stephen J. PERRY, Plaintiff and Appellant,
v.
FIRST CORPORATION et al., Defendants,
Southern Pacific Company, a corporation, and American Can Company, a corporation, Defendants and Respondents,
Hartford Accident and Indemnity Company, Plaintiff in Intervention and Appellant.
No. 17439.
District Court of Appeal, First District, Division 1, California.
Jan. 27, 1959.
Hearing Denied March 25, 1959.

Page 300

[167 Cal.App.2d 361] Edises, Treuhaft, Grossman & Grogan, Aubrey Grossman, Oakland, for appellant (plaintiff).

Ricksen, Freeman, Hogan & Vendt, Oakland, for respondent Southern Pac. Co.

Barfield & Barfield, San Francisco, for respondent American Can Co.

FRED B. WOOD, Justice.

A carload of empty drums belonging to Dewey and Almy Chemical Company had been returned to it by rail. One of its employees, plaintiff herein, was injured while removing drums from the car. Defendants' motions for nonsuit upon the ground of plaintiff's contributory negligence and assumption of risk were granted and he has appealed.

Plaintiff was a maintenance mechanic at the Dew and Almy plant but during the eight years of his employment had been assigned to the loading and shipping of cars about a half day to a day a month and during that time had worked at the unloading of 20 or 30 cars.

[167 Cal.App.2d 362] He testified that empty drums such as these (three feet high and two feet in diameter, weighing 110 to 125 pounds each) are customarily loaded upright in tiers, one tier above the other (a full car has three tiers), with a board across the doorway (nailed from the inside against the door post, which is of wood in contrast to the steel on the outside) opposite each tier, to hold the drums in.

When unloading such a car, the boards would be removed one at a time, the top one first. A ladder placed against the door of the car would be used to climb part way up to the level desired and the unremoved boards would be used to get high enough to reach the top drums. The men would climb up and roll the drums out onto a track system which joined with the plant

Page 301

conveyor, until they had an opening big enough to get into the car itself.

Upon the occasion here involved, plaintiff's foreman told him to work on the unloading of a certain boxcar. They had to pry the door open. The drums were up against it. So they got a piece of board and stuck it between the opening and kept prying the drums loose from the door so they could get the door open. When the door was pried open, it could be seen that there were no boards across the doorway. This was the first car plaintiff ever unloaded that did not have boards across the doorway. The first and second tiers of drums were standing upright. The first tier was packed loosely. The drums in the top row were not standing upright. They were laying down. They were badly scrambled. That was perfectly visible to plaintiff at the time the door was open. He was fully aware of that before he went into the car.

The method for the unloading of this car was different from what it had been on previous occasions. Plaintiff testified '* * * we couldn't unload it from the outside because the drums were pretty rickety and wobbly, and it was a hazard to attempt unloading it from the outside. The only way to unload it was to get inside up on top, find a safe place to stand and roll them out up on top.' He used a ladder that was between six and seven feet in length (it reached up to a point about two feet above the level of the floor of the car) to get as high as he could, then grabbed the side of the door and the door frame and pulled himself up and into the boxcar. The door opening was about eight feet high. When he was up in the car he had 'to figure out each move so I wouldn't get myself hurt. The car was in such a mess.' He was fully aware of that when he went into the car, 'it was not a safe [167 Cal.App.2d 363] loaded car, I will tell you that.' Asked whether he knew when he went up into the car whether he was putting himself into a position of danger, he said, 'Yeah, I guess so. It wasn't the safest looking car that I have ever gone into,' and that 'there is danger in anything I guess you do.'

He had rolled half a dozen drums out from the third tier when he was called to attend to a breakdown on a high-lift truck. It was his duty to respond to that call to fix the lift. He got out backwards by hanging onto the frame of the door, swinging himself around and putting his right foot on the top rung of the ladder. His right hand was on the edge of the doorframe, his left hand was around the door post and his left leg was hooked around the door post. He let his left hand go to get a lower grip so he could lower his left foot onto the ladder. He reached out and laid his hand on a second tier drum which was tipping over on him. He shoved the drum back in so it would not fall and knock him off. The result was that he lost the grip he had with his right hand and fell to the ground. The drum did not fall. He said that this drum tipped over the edge and would have 'got' him if he had not shoved it back. He did not believe he moved that drum while he was in the car. He believed he moved the drum that was on top of it. He did not know of any other way he could have gotten out of the car from the third tier down to the ladder than the way he took.

He referred to the ladder he used as a 'make-shift' ladder. He said 'it wasn't a proper ladder to use.' His employer had other types of ladders and longer ladders. With a longer ladder it would have been easier to climb in and out of that particular car. Asked if anything prevented him from making inquiry as to the whereabouts of another ladder or going and getting another ladder, he said 'No, I usually get told to do a job and 1 try to do it to the best of my ability without asking too many questions.' He used this ladder because it was out there for that purpose, the only one around there, and 'when they unloaded these cars they use it. I was no different than anyone else.' The ladder rested on solid ground and did not fall nor did it slip. It remained right where it was when he fell.

Page 302

Plaintiff's foreman testified that he was present at the beginning of the unloading operation, but was not there when the accident happened. He was there to be sure that the men were being careful. He believed 'they were handling it sufficiently not to have any accident at that time.' He had dunnage[167 Cal.App.2d 364] boards that could have been used to shore up the doorway. He did not consider it necessary to do so. (No one asked plaintiff if it occurred to him that it might be desirable to place boards across the doorway, nor whether he knew that boards were available for such a purpose.)

We have a picture of a man who was faced with a situation quite different from that which normally confronted him when unloading a car. He adopted a method for unloading this car which, according to him, seemed suitable for getting the drums out with the minimum of risk. The mere fact that an accident did occur does not demonstrate as a matter of law that he acted negligently in the selection and use of that method.

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8 practice notes
  • Carmichael v. Reitz
    • United States
    • California Court of Appeals
    • May 27, 1971
    ...the grant of nonsuit supplied gaps in plaintiff's case. Unlike the situation in Perry Reitz. He likewise did not move for a 359, 368, 334 P.2d 299, plaintiff's experienced trial counsel rested his case in chief without making it subject to reopening on the issue of liability against Dr. Rei......
  • Vallis v. Canada Dry Ginger Ale, Inc.
    • United States
    • California Court of Appeals
    • March 13, 1961
    ...a judgment. Costa v. Regents of University of Calif., 103 Cal.App.2d 491, 494, 229 P.2d 867. As said in Perry v. First Corporation, 167 Cal.App.2d 359, at page 368, 334 P.2d 299, at page 305: 'The contention is also made that this appeal should be dismissed because the notice of appeal was ......
  • Hohn, Application of
    • United States
    • California Court of Appeals
    • August 21, 1964
    ...122 Cal.App.2d 884, 886, 266 P.2d 143; People v. McShane, 126 Cal.App. 2d Supp. 845, 846-847, 272 P.2d 571; Perry v. First Corporation, 167 Cal.App.2d 359, 368, 334 P.2d 299; Nelson v. Angel, 94 Cal.App.2d 136, 139, 210 P.2d 256, the notice of appeal--'from that Order confirming award of Ar......
  • Home Fire & Marine Ins. Co. v. Pan Am. Petroleum Corp., No. 7193
    • United States
    • New Mexico Supreme Court of New Mexico
    • May 13, 1963
    ...of the cases cited by appellees wherein the court's action was sustained are of this type. The fourth case, Perry v. First Corporation, 167 Cal.App.2d 359, 334 P.2d 299, instead of supporting appellees' theory, to our minds, is in line with and supports the conclusion reached by us herein, ......
  • Request a trial to view additional results
8 cases
  • Carmichael v. Reitz
    • United States
    • California Court of Appeals
    • May 27, 1971
    ...the grant of nonsuit supplied gaps in plaintiff's case. Unlike the situation in Perry Reitz. He likewise did not move for a 359, 368, 334 P.2d 299, plaintiff's experienced trial counsel rested his case in chief without making it subject to reopening on the issue of liability against Dr. Rei......
  • Vallis v. Canada Dry Ginger Ale, Inc.
    • United States
    • California Court of Appeals
    • March 13, 1961
    ...a judgment. Costa v. Regents of University of Calif., 103 Cal.App.2d 491, 494, 229 P.2d 867. As said in Perry v. First Corporation, 167 Cal.App.2d 359, at page 368, 334 P.2d 299, at page 305: 'The contention is also made that this appeal should be dismissed because the notice of appeal was ......
  • Hohn, Application of
    • United States
    • California Court of Appeals
    • August 21, 1964
    ...122 Cal.App.2d 884, 886, 266 P.2d 143; People v. McShane, 126 Cal.App. 2d Supp. 845, 846-847, 272 P.2d 571; Perry v. First Corporation, 167 Cal.App.2d 359, 368, 334 P.2d 299; Nelson v. Angel, 94 Cal.App.2d 136, 139, 210 P.2d 256, the notice of appeal--'from that Order confirming award of Ar......
  • Home Fire & Marine Ins. Co. v. Pan Am. Petroleum Corp., No. 7193
    • United States
    • New Mexico Supreme Court of New Mexico
    • May 13, 1963
    ...of the cases cited by appellees wherein the court's action was sustained are of this type. The fourth case, Perry v. First Corporation, 167 Cal.App.2d 359, 334 P.2d 299, instead of supporting appellees' theory, to our minds, is in line with and supports the conclusion reached by us herein, ......
  • Request a trial to view additional results

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