Morales v. L. W. Blinn Lumber Co.

EDMONDS, J.,

pro tem.

This action brought by appellant to recover damages for personal injuries has previously been before this court, and a judgment for the defendants entered upon a directed verdict was reversed. (139 Cal. App. 53 [33 Pac. (2d) 16].) The present appeal is from a

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judgment in favor of the respondents lumber company and Hughes, its employee, after a second trial.

Appellant urges a number of points as grounds for reversal of the judgment, but they are all based upon the that the evidence justifies only one finding concerning the facts of the case. The record, however, shows the to be conflicting, and the finding of the trial court that the respondent Hughes was not negligent in his operation of the lumber company’s truck is amply supported. That a finding to the contrary would also be supported furnishes no ground for a reversal of the judgment.

The accident occurred on the property of Layne & Bowler Company, a part of which had been leased to one Kranzler for the purpose of conducting a junk business. The Blinn Company’s truck driven by Hughes entered the property with a load of lumber for the Layne & Bowler Company. It could not proceed to the point where the lumber was to be delivered because there was a railroad car in the way. This car had been spotted for the use of Kranzler, who was loading junk into it.

One Thompson, a shipping clerk for Layne & Bowler, went out to receive the load of lumber, and told Hughes that he would have the car moved. He then went to Kranzler and told him to move the car. This Kranzler attempted to do with a dump truck, to which the car was attached by a chain. Assisting him were his two sons and Morales, appellant here.

According to the testimony of Thompson, after several attempts had been made by Kranzler and his men to move the ear, he said to them: “We have got to get the car moved, and, so, we will have the Blinn man give us a hand.” Thompson then went back to the lumber truck, where Hughes had remained in the driver’s seat, and asked Hughes to give the railroad car a push. A 4x4 block was placed between the truck and the ear to provide means for applying the force. On a signal from Thompson, Hughes drove the truck against the block. The car started, but the block came out. At this time one of the Kranzler sons came back from the dump truck where he had been working and held the block against the ear for a second push. The ear continued to “inch” along very slowly and moved a total distance of less than twelve feet. However, appellant was caught between the railroad car and the dump truck and was injured.