Springer v. Reimers

• Decision Date: 11 February 1970
• Court: California Court of Appeals Court of Appeals
• Parties: Dirk William SPRINGER, Plaintiff and Appellant, v. Ray REIMERS, E. Guy Warren, dba Warren Transportation Company, Defendants and Respondents. Holly Sugar Corporation, Intervenor and Appellant. Civ. 25771.

Page 486

84 Cal.Rptr. 486

4 Cal.App.3d 325

Dirk William SPRINGER, Plaintiff and Appellant, v. Ray REIMERS, E. Guy Warren, dba Warren Transportation Company, Defendants and Respondents Holly Sugar Corporation, Intervenor and Appellant.

Civ. 25771.

Court of Appeal, First District, Division 1, California.

Feb. 11, 1970.

Werchick & Werchick, Jack H. Werchick, San Francisco, for appellant springer.

Sedwick, Detert, Moran & Arnold, San Francisco, for appellant Holly Sugar Corp.

Clark, Heafey & Martin, Chris G. Gasparich, Oakland, for respondents.

MOLINARI, Presiding Justice.

This is an appeal by plaintiff Dirk William Springer and Holly Sugar Corporation, intervenor (hereinafter sometimes referred to as 'plaintiffs'), from a judgment entered on a jury verdict for defendants Ray Reimers and E. Guy Warren, doing business as Warren Transportation Company (hereinafter sometimes referred to as 'defendants') in an action for personal injuries brought by Springer against Reimers and Warren. Holly Sugar Corporation (hereinafter 'Holly'), Springer's employer, intervened to recover the workmen's compensation payments made to Springer.

The Facts

On February 15, 1963, Springer, a pulp dryer foreman for Holly, and its employee since 1945, was injured when he fell from the top of a hopper trailer which was being loaded at his employer's plant. The trailer was part of a trucking rig consisting of a diesel-powered tractor and two hopper trailers. At the time of the accident the trucking rig was owned by Warren and was driven by Reimers in the course and scope of his employment for Warren. Each trailer had two compartments which were filled with sugar through separate hatches on top of the trailer.

Among his duties Springer was required to assist the drivers of the trucking rigs in loading granulated sugar. In the loading operation the driver positioned the trailers so that the hatch would be under a loading bin. Springer would then climb to the top of the trailer, open the hatch, and place a canvas tube or 'sock' attached to the bottom of the bin over the hatch opening. The sugar flowed from the bin into the trailer through the sock when Springer activated a shutter valve at the bottom of the bin. After the compartment was filled, Springer would shut the valve and then step down on a platform adjacent to the top of the trailer. He would then verbally signal the driver to move forward so that the next compartment could be filled.

On the day of the accident Reimers drove a trucking rig to the Holly plant, arriving at about 5 a.m. Springer had come to work about one-half hour earlier. After Reimers had positioned the truck and trailers under the loading bin and the forward compartment of the first trailer had been filled as described above, Springer stepped off the top of the trailer and signaled Reimers to move the trailer forward so that the rear compartment could be loaded. While this compartment was being filled, Reimers left the cab of the tractor, climbed up and stood on a ladder resting against the trailer and conversed with Springer until he saw the compartment was almost full, whereupon he returned to the cab of the tractor to await Springer's signal to move forward.

While Reimers was waiting for the signal Springer fell from the top of the trailer and sustained serious bodily injuries. The testimony as to the cause of Springer's fall is in sharp conflict. Springer testified that after the compartment was full and as he reached up to turn off the sugar flow valve the trailer on which he was standing suddenly moved or 'jerked' causing him to fall to the concrete below. Reimers testified that he thought he heard a 'thump' over the sound of the engine, ¹ so he left the cab to investigate and found plaintiff lying face down on the concrete between the front and back trailers. Springer stated that he regained consciousness at about this time and asked Reimers why he moved the truck and that Reimers replied he did not move the truck. Reimers denied this conversation took place. The night watchman, Jesse Alvarez, testified that after Reimers had come to his office to report the accident and to telephone for an ambulance, he went to Springer's side. Upon inquiring what happened Springer stated 'The guy pulled the truck away from me, from under me.' The records of the emergency room where Springer was taken for treatment on the day of the accident also contain a statement similar to that which Springer made to Alvarez.

Reimers testified substantially as follows: that he had exclusive control over the truck; the truck could only have moved if he moved it; it would have been improper for him to have moved the truck without a signal from Springer; and that no signal had been given. Reimers flatly denied having moved the truck. There were no other witnesses to the accident. ²

Contentions

Plaintiffs contend: (1) The court erred in refusing to give the jury a conditional res ipsa loquitur instruction; (2) the court erred in refusing to give the jury an instruction on the employer duty presumption arising under the 'work safety' statutes of the Labor Code; (3) the court contradicted itself and prejudicially confused the jury by giving BAJI No. 138.2 relating to contributory negligence after it had previously found and so informed the jury that plaintiff was in no way contributorially negligent; (4) prejudicial error was occasioned by the trial court's improper admission of evidence demonstrating plaintiff's prior medical history of alcoholism.

Res Ipsa Loquitur

Generally, res ipsa loquitur applies where the occurrence of the injury is of such a nature that it can be said in the light of past experience that it probably was the result of negligence by someone and that the defendant is probably the person responsible. (Tomei v. Henning, 67 Cal.2d 319, 322, 62 Cal.Rptr. 9, 431 P.2d 633; Clark v. Gibbons, 66 Cal.2d 399, 408, 58 Cal.Rptr. 125, 426 P.2d 525.) Where res ipsa loquitur applies the jury is permitted to infer negligence from the happening of the accident alone. (Tomei v. Henning, supra.) The plaintiff is deprived of the benefit of the doctrine of res ipsa loquitur, however, where he introduces evidence of specific acts of negligence And the facts as to the cause of the accident and the care exercised by the defendant are shown as a matter of law. (Di Mare v. Cresci, 58 Cal.2d 292, 299, 23 Cal.Rptr. 772, 373 P.2d 860; Akins v. County of Sonoma, 67 Cal.2d 185, 195, 60 Cal.Rptr. 499, 430 P.2d 57; Keeton v. Henning, 1 Cal.App.3d 50, 54, 81 Cal.Rptr. 424.) The reason for this rule is that where such facts are shown as a matter of law, justification for resort to the inference of negligence is eliminated. (Di Mare v. Cresci, supra; Akins v. County of Sonoma, supra.)

In Keeton, supra, the reviewing court, although reversing on other grounds, held that prejudicial error did not occur because of the trial court's refusal to instruct on res ipsa loquitur. There the evidence without conflict showed that, because a hay truck was so overloaded as to obscure the defendant driver's vision, the plaintiff was standing on the tailgate of the defendant's truck, giving him hand signals as he was backing the truck to a barn door; that when the truck reached the proper spot, the plaintiff signalled the defendant to stop the truck, which he did; and that then the driver allowed his foot to slip from the clutch pedal while the truck was in gear and before the motor died, causing it to jerk and hurl the plaintiff backward with resulting injuries. The court, citing Di Mare, supra, and quoting from Akins, supra, held "In the present case the facts are undisputed as to how the accident happened and the care exercised by defendants. * * * The issue is whether the undisputed conduct of defendants constituted negligence which proximately contributed to plaintiff's injuries, and there is no room for resort to inference as to what defendant did or did not do.' (1 Cal.App.3d 50, 54, 81 Cal.Rptr. 424, 426.) Similarly, in Akins, supra, the facts were undisputed as to how the plaintiff fell from the county's bleachers, as to the condition of the bleachers, and as to the care exercised by the county. Accordingly, it was held that since the issue was whether the undisputed conduct of the county constituted negligence, there was no room for resort to inference as to what the county did or did not do, and, therefore, the res ipsa loquitur doctrine did not apply. (67 Cal.2d 185, 195, 60 Cal.Rptr. 499, 430 P.2d 57.)

In the present case, the facts as to how the accident happened and the care exercised by defendants Are in dispute. Although it is undisputed that Springer fell from the top of the trailer, the testimony as to the cause of the fall is in conflict. Springer testified that the trailer moved or 'jerked'; Reimers that it did not move at all. Accordingly, the facts as to the cause of the accident and the care exercised by Reimers are not shown as a matter of law. Plaintiffs are not, therefore, precluded from the benefit of the doctrine of res ipsa loquitur merely because they introduced specific acts of negligence on the part of defendants.

The question in this case is whether, in the light of past experience, the accident was probably the result of negligence and that Reimers is probably the person who is responsible. Here plaintiffs do not contend that the doctrine of res ipsa loquitur is applicable as a matter of law. The instructions proffered by them are those commonly referred to as the conditional res ipsa loquitur instructions which direct the jury that it must decide whether the accident in question occurred under circumstances in which three specified conditions are present, followed by a direction that if, and only in the event that they should find all those conditions to exist, they are instructed that from the happening of the accident an inference arises that a proximate cause of the occurrence was some negligent conduct on...