Lámar v. John & Wade, Inc.

California Court of Appeal Sep 19, 1945 No. Civ. 14763Published

Before: Shinn

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Holding. The court held that the defendant was liable for the plaintiff's injuries because the defendant's employee created a dangerous condition by moving the truck to an unsafe angle, and the plaintiff, as an invitee, did not assume the risk of this non-obvious danger.

Issues

Whether the evidence was sufficient to support a finding of negligence on the part of the defendant.
Whether the plaintiff was an invitee to whom the defendant owed a duty of care.
Whether the plaintiff assumed the risk of injury or was contributorily negligent.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The place where plaintiff was working was not a reasonably safe one at the time; it had been provided by defendant as a place for workmen and plaintiff had done nothing which rendered it unsafe.”

“The immediately dangerous condition was created by defendant and the danger was not one which an unskilled laborer would necessarily have recognized in the exercise of ordinary care.”

SHINN, J.

Plaintiff had verdict and judgment against John & Wade, Inc., for personal injuries sustained when a stack of rock lath fell upon him while he was helping unload defendant’s truck. Defendant appeals, urging insufficiency

[808]

of the evidence to show negligence upon its part, and claiming that the evidence established its defenses of assumption of risk and contributory negligence.

Atkinson & Pollock Company was constructing buildings at Norco, California, and employed John & Wade to haul rock lath from Corona to the building site. One Olsen was defendant’s truck driver. Plaintiff was a laborer employed by Atkinson

Pollock Company. The rock lath was in sheets 18" x 48." Several sheets were bound together with gummed paper, making each bundle two or three inches thick, weighing 50 or 60 pounds. They were stacked in nine tiers of 21 to 23 bundles each, to a height of some four feet, crosswise, in the truck bed, the load consisting of 210 bundles. There was a clearance of a couple of feet at each end of the tiers and the bed was filled from the cab to within a foot or two of the rear end, which had no tail board. During transit the load was roped down. One of the buildings was against a side hill. A dirt road, ten feet wide, ran up the hill alongside the building to the level of the third or fourth floor. It had a grade of 18 or 20 per cent and in places, up to 30 per cent. After Olsen had delivered several loads to other points he was sent up this road by the foreman of Atkinson & Pollock Company to unload at about the level of the second floor. The truck was stopped at that point and the unloading began. Olsen lifted bundles from the front end and handed them down to Atkinson & Pollock’s employees, who stacked them on the ground. Plaintiff, upon orders from his foreman, climbed upon the rear of the truck floor and handed bundles down to the right of the truck, toward the building. When he had unloaded two tiers at the rear he left to go to a rest room. While he was away Olsen moved the truck forward four or five feet and in doing so increased the angle of inclination above what it had been. The grade there was 20 per cent or thereabouts. When plaintiff returned to the truck he climbed onto the floor from the rear. As he was removing the first bundle from the top of a tier the bundles slipped down “like a deck of cards,” and nearly all of the tier came down. Plaintiff jumped from the truck but the bundles fell upon him, broke his legs and caused other injuries. One of the witnesses to the accident was a truck driver who was working for Atkinson & Pollock, taking the bundles as they were handed down by plaintiff. He testified that as the truck

Lámar v. John & Wade, Inc.

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SHINN, J.

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