Wiley v. Southern Pacific Transportation Co., B040049

• Decision Date: 10 May 1990
• Docket Number: No. B040049,B040049
• Citation: 269 Cal.Rptr. 240,220 Cal.App.3d 177
• Court: California Court of Appeals Court of Appeals
• Parties: Kevin WILEY, a Minor, etc., Plaintiff and Respondent, v. SOUTHERN PACIFIC TRANSPORTATION CO., Defendant and Appellant. Civ.

Page 240

269 Cal.Rptr. 240

220 Cal.App.3d 177

Kevin WILEY, a Minor, etc., Plaintiff and Respondent, v. SOUTHERN PACIFIC TRANSPORTATION CO., Defendant and Appellant.

Civ. No. B040049.

Court of Appeal, Second District, Division 5, California.

May 10, 1990.

Certified for Partial Publication ^*

Review Denied July 25, 1990.

[220 Cal.App.3d 182] A.L. Renick, Beverly Hills, for plaintiff and respondent.

Morris, Polich & Purdy, Robert S. Wolfe, Douglas J. Collodel, Los Angeles, for defendant and appellant.

TURNER, Associate Justice.

I. PROCEDURAL HISTORY

Defendant, Southern Pacific Transportation Co., appeals from an order granting plaintiff's motion for new trial on the grounds of juror misconduct. Defendant also appeals from the court's orders denying its motion for judgment notwithstanding the verdict and its motion to amend or correct the judgment.

Plaintiff, Kevin Wiley, by and through his guardian ad litem, filed a complaint against the defendant for general and special damages resulting from an injury he received while climbing over defendant's train. Plaintiff's father did not seek to recover any damages or expenses. Defendant filed an answer asserting the comparative negligence of the minor and the father. The jury returned a special verdict against the defendant. The jury assessed defendant's negligence at 25 percent and plaintiff's comparative negligence at 75 percent. The father was found not to have been negligent. Plaintiff's total damages before apportionment were found to be $125,000 excluding medical expenses. The jury found that plaintiff's medical expenses were $53,366. The award of medical expenses was not reduced by the percentage of plaintiff's comparative fault.

On December 15, 1988, the court entered judgment for plaintiff for $84,616. Defendant filed a motion for judgment notwithstanding the verdict on the grounds that there was no evidence that defendant had been negligent due to plaintiff's trespass on its property and that the sole proximate cause of plaintiff's injury was his decision to climb over the train. In the alternative, defendant moved for a new trial or to amend the judgment on the grounds that the court had erroneously refused to reduce the award for medical expenses by the percentage of plaintiff's comparative negligence.

Plaintiff filed a new trial motion on December 30, 1988. One of the grounds for the motion was juror misconduct. In support of the motion, plaintiff attached the declaration of one juror, Victor Greene. Greene indicated that one of the jurors, Alphonso Trezevant, stated during deliberations that he had been sued by a boy who had trespassed on his property and was injured while playing near Mr. Trezevant's car. Plaintiff contended that Mr. Trezevant concealed this fact during jury voir dire.

The trial court denied defendant's motions and granted plaintiff's motion for a new trial on the sole ground of juror misconduct for intentional concealment of bias during voir dire examination of the prospective juror. Defendant filed a timely notice of appeal from the court's orders.

II. TRIAL TESTIMONY

When plaintiff was 12-years old, he was injured while climbing between two railroad cars. About two months before the accident, plaintiff had enrolled in a junior high school that was about three blocks to the north of where the railroad tracks were located. Although plaintiff's father bought him an RTD bus pass for transportation to and from school, plaintiff, unbeknownst to his father, began walking home with some of his friends who lived on his block. On the day of the accident, plaintiff and two other boys, who were kept after school in detention, decided to take a shortcut home through defendant's railroad yard. Plaintiff could have used public streets to walk home. When they reached the tracks, a train that was approximately a mile long blocked their way. The train was not moving. Because the boys could not see the end of the train in either direction, they decided to climb over the train. The two other boys climbed up a ladder on one of the tri-level cars and avoided stepping on the couplings. A coupling is a mechanism that connects the railroad cars to each other. As plaintiff attempted to cross over the train by stepping on a coupling, he heard a loud noise as the train started to move backwards. His left foot was caught between and crushed in the moving coupling device. Plaintiff was unable to remove his foot from the device until the other boys alerted the crew to stop the train which caused the coupling to open. As a result of the accident, plaintiff's toes on his left foot and part of the left foot were amputated. Plaintiff testified that he did not believe that there was any danger to him from climbing over a stationary train. He felt that because of the length of the train, if it did start to move, it would have done so slowly and he would have been able to climb off without injury.

School personnel were aware that for, at least 20 years, students walked to and from the school over the railroad tracks. Railroad employees were also aware that the children walked on the tracks. The children believed that they were taking a "shortcut" over the railroad tracks. Conflicting evidence was presented by the parties as to how much the school warned the students about walking over the railroad tracks. Railroad personnel testified although they were aware that the children were regularly using the tracks, that as long as the children did not create any problems, they left the children alone. Brian Butterfield, an employee of defendant who moved locomotives around the railroad yard said of the children who were on railroad property, "If they don't bother us, we don't bother them."

Plaintiff presented opinion testimony from a human factors research scientist that the absence of safeguards to protect children near the railroad tracks constituted an unsafe condition. The witness, Dr. Slade Hulbert, concluded that the railroad had a duty to take steps to prevent injury to the students walking through the railroad yard from the school. ¹ Evidence was presented that, on January 11, 1984, prior to plaintiff's enrollment at the junior high school, the railroad presented a safety film to the students.

III. DISCUSSION

A. MOTION FOR A NEW TRIAL

1. The declaration in support of the new trial motion.

Defendant contends that the court erred when it granted the motion for new trial. Plaintiff supported the new trial motion with the declaration of one juror, Victor Greene, ² which the plaintiff argues shows that Mr. Trezevant intentionally concealed his bias against plaintiff during voir dire. ³ Jurors are competent witnesses to prove objective factors to impeach a verdict. (People v. Hutchinson (1969) 71 Cal.2d 342, 351, 78 Cal.Rptr. 196, 455 P.2d 132; Evid.Code, § 1150.) Improper influences that may be proved pursuant to Evidence Code section 1150 to impeach a verdict are limited to those open to sight, hearing and other senses that are subject to corroboration. (Tillery v. Richland (1984) 158 Cal.App.3d 957, 974, 205 Cal.Rptr. 191.) The declaration in this case described Mr. Trezevant's conduct during deliberations and discloses that he told his fellow jurors that he had been previously sued by a minor who had trespassed on his property. It also demonstrated that Mr. Trezevant disclosed for the first time during jury deliberations that he had a strongly held negative opinion about trespassers and whether they are entitled to recover for their injuries sustained while trespassing.

2. The failure to file the "no knowledge declaration."

Defendant contends that plaintiff's motion for a new trial should have been denied because he failed to file a "no-knowledge" declaration. A party who is requesting the court to grant a new trial on the ground of juror misconduct must file a "no-knowledge" declaration which states that neither the attorney nor the client was aware of the alleged misconduct of the juror prior to the verdict. (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 103, 95 Cal.Rptr. 516, 485 P.2d 1132; Lindemann v. San Joaquin Cotton Oil Co. (1936) 5 Cal.2d 480, 495-496, 55 P.2d 870; Crespo v. Cook (1959) 168 Cal.App.2d 360, 363, 336 P.2d 31.) It has been held that the requirement is inflexible pursuant to "uninterrupted case authority since at least Sherwin v. Southern Pacific Co. (1914) 168 Cal. 722, 726 ...." (People v. Southern Cal. Edison Co. (1976) 56 Cal.App.3d 593, 598-599, 128 Cal.Rptr. 697.) The policy behind this requirement "is to prevent a party who, personally or through counsel, has discovered some jury misconduct during the course of the proceedings from gambling on the outcome of the jury's deliberations while secretly preserving the error to be raised on a motion for a new trial in the event of an unfavorable verdict." (Weathers v. Kaiser Foundation Hospitals, supra, 5 Cal.3d at p. 103, 95 Cal.Rptr. 516, 485 P.2d 1132.) None of these cases, however, addressed the issue in this case which is whether a party, on appeal, may raise the failure to file the "no knowledge" declaration in the trial court as a basis for reversal of an order granting a new trial motion when the absence of such a declaration was not raised in the trial court. ⁴

Plaintiff is correct that defendant invited the error by failing to object in the trial court and has waived its right to object on appeal. The rule of invited error by waiver does not apply to noncurable defects of substance where the question is one of law such as lack of jurisdiction or complete failure to state a cause of action. (9 Witkin, Cal. Procedure (3d ed. 1985) Appeals, § 315, p. 326.) It "is limited to matters involving errors which could have been cured in the trial court, for instance by introduction of additional evidence or framing of correct instructions." (Flores v. Natividad Medical Center (1987) 192 Cal.App.3d 1106, 1117-1118, 238 Cal.Rptr. 24.) As a general rule, an...