General Petroleum Corp. v. City of Los Angeles

WOOD, J.

Plaintiff obtained a judgment against defendants as compensation for damage to its wharves caused by the Japanese Steamship

Hakonesan Maru

which was being brought to the wharves by defendant Oliegreen, a pilot in the employ of defendant city. It is charged that the pilot was negligent in docking the vessel. On a former appeal, taken by plaintiff from a judgment after a ruling that the complaint failed to state a cause of action against defendant city (22 Cal. App. (2d) 332 [70 Pac. (2d) 998, 72 Pac. (2d) 551]), it was held that the city was engaged in a proprietary function at the time of the accident and is liable for the negligence of its agent, the pilot Oliegreen. After the remittitur'went down the action was tried and the court found that the damage was caused by the negligence of the pilot. It is now contended on behalf of defendants that this finding is not supported by the evidence and that the damage was caused by an unavoidable accident brought about by a sudden gust of wind.

The vessel struck the wharves on the afternoon of May 21, 1932, between 5:30 and 6:00 o’clock. As the vessel entered the harbor the tugboat

John Stuart

was tied to her bow and the pilot prepared to take her to plaintiff’s wharves. The witness Foley, chemist in plaintiff’s employ, testified that he saw the

Hakonesan Maru

as she approached plaintiff’s wharves and that her bow was angled into the wharves when she was only 20 feet away. The witness McKinney, a doekman, testified that as the vessel proceeded up the channel she was about 115 feet distant from the wharves. A number of witnesses testified that the weather had been windy and squally all the afternoon. The witness Foley and the witness Brown, a doekman, testified that they did not

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notice a gust of wind of any great intensity immediately before the accident. Prom the chart of the United States Weather Bureau it appeared that from 3 P. M. to 7 P. M. on the date in question the wind was blowing between 24 and 30 miles per hour and between 5 P. M. and 6 P. M. it varied between a low of 25 and a high of 32 miles per hour. The chief of the weather bureau testified that a wind blowing from 25 to 30 miles per hour at Los Angeles harbor would be “somewhat gusty” and that the gusts would vary “considerably” from the average velocity. Captain Gilbert, port captain for defendant city, in answer to the question, “How do you bring boats into the General Petroleum docks when it is blowing a good breeze”, answered, “I employ two tugs, each with a tow line, one at the bow of the vessel the other at the stern ... ”.