Towt v. Pope

• Decision Date: 09 March 1959
• Citation: 168 Cal.App.2d 520,336 P.2d 276
• Court: California Court of Appeals Court of Appeals
• Parties: Jack H. TOWT, Plaintiff and Appellant, v. H. F. POPE, Defendant and Respondent. Civ. 23081.

Page 276

336 P.2d 276

168 Cal.App.2d 520

Jack H. TOWT, Plaintiff and Appellant, v. H. F. POPE, Defendant and Respondent.

Civ. 23081.

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

March 9, 1959.

Orville O. Clarke, Richard Schauer, Ben M. Shera, Los Angeles, for appellant.

Moss, Lyon & Dunn, Gerold C. Dunn, Henry F. Walker, Los Angeles, for respondent.

LILLIE, Justice.

Defendant was sued by plaintiff, an employee of Vinnell Co., a corporation, for damages arising out of an industrial injury in its steel plant. Pope, vice president of the corporation, was sued individually although Vinnell Co. was not joined as a party defendant, plaintiff having exhausted his remedies against it under the compensation provisions of the Labor Code. The matter was heard by a jury and, at the conclusion of plaintiff's case, defendant's motion for a judgment of nonsuit was granted. It is from this judgment plaintiff appeals.

Taking all of the evidence in favor of appellant as true and disregarding that in conflict, and drawing on appellant's behalf every favorable inference and presumption fairly deducible and arising therefrom (Raber v. Tumin, 36 Cal.2d 654, 226 P.2d 574), the following is a fair summary of the pertinent facts.

Defendant Pope was a vice president in charge of the steel division of the Vinnell fabricating plant. Directly subordinate to him and in complete charge of the division was Rene Pfister, his superintendent, to whom he directly gave all orders and instructions. There is no evidence plaintiff ever saw defendant, had any dealings with him, or that he was present at the time of the accident.

Plaintiff started work in the steel division on July 12, 1954, on the swing shift as a 'take-off' man on the '46' saw. He was told what to do but given no instructions relative to standing in the stacks, hooking loads of steel, using spreader bars, or giving hand signals. Later he did burring, drove drift pins and ran a punch press. A week or ten days before the accident, he was assigned to work as a helper with McHammer, an experienced mechanic fitter.

On the night of August 12, 1954, plaintiff and McHammer, fabricating and tack welding base plates on 'I' beams, ran out of material. McHammer took him to the center of the bay where they found a stack of eitht 'I' beams, 40 feet long. The four on top were divided from the bottom four by 4"' X 4"' spacers. On top of the stack was a separate steel beam they had to first remove, and McHammer called over the bridge crane. There were two chains hanging from the hook of the crane and each chain ended in a hook. Plaintiff hooked his chain to the end of the beam, McHammer hooked his to the other end, and the crane lifted it away. When the crane returned, it moved over the stack and again let down the hook with the chains. McHammer attached his hook around the end of the top four 'I' beams and plaintiff attached his around the opposite end. Plaintiff did not remember who gave the 'up' hand signal to LaPlant, the crane operator, he or McHammer, but plaintiff started walking toward the end of the beams. He said he could have given the signal himself, and he could have done so before or as he was walking, but after walking ten or fifteen feet, the four bottom beams fell onto him, seriously injuring him. The top four plaintiff had hooked onto did not touch him, but the south end of the beams was held in mid-air by the chain hooked around it, attached to the crane the other end was down, the chain unhooked.

LaPlant, plaintiff's witness, testified that he centered the crane above the load and lowered the hook with the chains; that each man hooked his chain around opposite ends of the stack and when they finished hooking, both plaintiff and McHammer gave the standard hand signal to lift up, but that he looked down and shook his head 'no'; that plaintiff looked at him, appeared angry and to be talking and again gave the 'up' signal; that McHammer, an experienced mechanic fitter, who had previously directed his crane and who had been there all the time with plaintiff and knew his business, was also giving the 'up' signal, so he commenced to take the slack out of the chains, moving as slowly as possible; that as he was tightening the chains preparatory to lifting the beams in the air, plaintiff's hook 'must have come off' or the chain plaintiff 'hooked either slipped or came unhooked' and the stack 'creeled' eastward, and it appeared the top stack knocked over the bottom four beams onto plaintiff.

The evidence shows that the men on the night shift received no safety instructions relative to hooking steel or standing in the stacks while the crane was in operation; that although hooktenders worked in the shop on the day shift, none worked at night except in the yard; that if it was necessary to move stacks 'everyone' hooked his own load of steel without trouble and no instructions were given that any particular man was to hook or tie loads of steel; that, although it was customary to take orders from mechanics, no instructions were given that any special worker was to give signals to crane operators; that those with no prior experience learned hand signals by watching others and everyone gave them when it was necessary; and that a copy of the Standard Crane Hand Signals in use by all crane men, printed by the Division of Industrial Safety, was posted on the plant bulletin board.

Except for defendant's testimony that he had nothing to do with plant safety, the only other evidence concerning it related to Pfister's responsibility to establish a safety program and carry it out, and what he did in that regard. Viewing the evidence in the light most favorable to appellant, we make no further comment except to say that defendant gave neither written or oral safety instructions, nor orders to anyone but Pfister, and that he knew of the hiring policy of Vinnell Co. to employ inexperienced men with no prior steel experience as helpers.

As to his experience, plaintiff testified he had been a pond engineer for a plywood company, but had operated an overhead bridge crane and learned crane hand signals. He also worked as an erection foreman for the Towt Wind Machine Co. Between July 12 and August 12, he did various jobs in the plant, including work as a helper to Bennett and then to McHammer. Immediately before the accident, plaintiff successfully hooked the chain on the one beam the crane moved away. He could not recall if he had ever seen any of the men hook or unhook loads, although he had often seen the overhead cranes lifting steel and moving it from place to place. He testified he had never hooked a load like this before, although he did know three different ways to fasten hooks on chains, describing them--'bring the chain down and around the load and bring the hook back up and hook it over the chain', 'bring the chain down and around underneath the load and back up again, and (to) put the hook under the chain'; and the method he used on the load in question which he described in precisely the same manner as the customary and proper way outlined by his own expert witness Harris. Plaintiff described the method he used: 'I brought the chain down around one side of the 'I' beams and brought it across and under the top four where there was a spacer separating it from the bottom four. I then brought the chain up on the other side. I took the hook on the end of the chain and hooked it around the chain, itself.' He did not recall if he fixed the hook over or under the chain on the load, but he further testified he attached the hook on the end of the chain 'about the center of the web so that the hook was centered above the load.' Harris described the proper method in the same way: 'It is customary in tying loads for the man doing the tying to bring the chain down on one side of the load, around underneath it, and back up again. On this end of the chain there is a hook and when it is brought back up on the other side it is hooked back onto the chain, itself. In doing this, the man tries to hook the chain over the center of the load.' Appellant's reliance upon his inexperience as having made it unsafe for him to act as hooktender, and for the crane operator to rely on his unauthorized hand signals, is misplaced in view of the uncontradicted evidence that plaintiff hooked the load in question properly. If a hooktender does this work, and the record is silent as to what a hooktender's functions and duties are, it is clear from plaintiff's own testimony that any lack of experience on his part had no connection with whether it was safe for him to act as a 'hooktender' on the occasion of his injury, for he hooked the load in the proper and customary manner as it should have been done; and there is nothing in the record to show that it was anything plaintiff did or did not do that caused the hook to 'come off' or the chain to slip or come unhooked. As to whether plaintiff's inexperience made it unsafe for the crane operator to rely on his 'unauthorized' hand signal, it is clear that, although plaintiff may have given the 'up' signal too, LaPlant did not lift the load in question until McHammer gave his signal. In any event, plaintiff himself testified that he knew the standard hand signals from having previously operated a crane.

At no time did plaintiff directly testify that he was inexperienced. Of interest is the fact that his own witness Bennett, a fitter, with whom he had worked as a helper, testified in response to plaintiff's own questions on direct examination, that he was a 'good and experienced helper.'

Appellant contends that (1) there is sufficient evidence in the record that defendant violated a duty of care he owed to plaintiff, (2) the issue of proximate cause should have gone to the jury and (3) the trial court erred in failing to permit his expert to answer several hypothetical questions.

Appellant, an employee of the same corporation employing defend...