Morales v. L. W. Blinn Lumber Co.

DESMOND, J.

Under instructions of the trial court, the 'jury in this case rendered a verdict in favor of defendants L. W. Blinn Lumber Company and R. R. Hughes. This action was taken at the close of plaintiff’s case, upon defendants’ motion and without any evidence being submitted by them. Plaintiff appeals.

Appellant, employed by one Kransler, was working on a lot abutting upon the east side .of Santa Fe Avénue in the city of Los Angeles. Kransler had leased a portion of this lot for use as a junk yard. Through Santa Fe Avenue runs a railroad track in a northerly and southerly direction, with a spur leading to the east through the lot above mentioned and immediately adjacent to the junk yard. A driveway within the lot crosses this spur-track in a southerly direction. Directly blocking this roadway on the day in question was a gondola freight-ear, that is, a car without a top and with solid sides rising approximately five feet from the flat body of the car. Kransler, assisted by his son and the appellant, proposed to haul this gondola to the east along the spur-track so that the driveway would not be blockaded. To accomplish this they drove a White truck into a position on the spur-track directly east of the gondola, and appellant, under instructions of his employer, then undertook to attach the two by means of a chain. In the performance of that work he bent or crouched down at the east end of the freight-car. While this operation was going on the motor of the track was left running. In the meantime defendant Hughes, driver of a truck belonging to respondent company, entered the yard, driving easterly along the spur-track to a point west of the gondola, where he stopped. Shortly thereafter he drove forward and shoved the gondola ahead by means of his truck, thereby pinning appellant between the easterly end of the gondola and the White truck, inflicting injuries for which this action was brought.

Although Hughes testified that he saw two men on the top of the gondola, that he heard the motor of the White truck and that he knew the truck was in front of the gondola, he not only failed to leave his seat in the machine which he operated and go forward to inspect conditions at the east end of the gondola, but there is no evidence that he called out to the Kransler crew or gave them any warning that he intended to shove the car toward the east. At the time-the Kranslers, father and son, and appellant began the job of pulling the gondola easterly on the spur-track, the Blirrn Lumber Company's truck was not in the yard; and appellant testified that at no time did he see that machine or know that it was in the yard until after the accident.

The complaint, of course, is predicated upon the negligence of the defendants, and the answer sets up contributory negligence on the part of appellant. Under the facts above recited, we believe the determination of the questions, "Were defendants negligent?" and "Did the plaintiff proximately contribute to his injury by his own negligence?” should have been committed to the jury. As to the latter of these two questions the comment of the court in O’Connor v. United Railroads, 168 Cal. 43, at page 48 [141 Pac. 809, 811], is pertinent: "As a general rule, whether a person has exercised ordinary care or not is to be left to the jury to be determined by them from all the circumstances surrounding him at the time." As to the former see 19 California Jurisprudence, 591 et seq.

Judgment reversed.

Archbald, J., pro tem., concurred.