Zancaner v. Louisville & Nashville Railroad

California Court of Appeal Oct 3, 1963 No. Civ. 10619Published

Before: Schottky

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Holding. The court affirmed the order setting aside a summary judgment, holding that the trial court acted properly because the summary judgment was prematurely entered and because the evidence presented triable issues of fact regarding the carrier's duty of care.

Issues

Whether a summary judgment can be sustained when the record reveals triable issues of fact regarding a carrier's duty of care.
Whether a trial court may properly set aside a summary judgment that was prematurely entered before the plaintiff's counter-affidavit was filed.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The purpose of the summary judgment procedure is not to try issues but merely to determine whether there are issues to be tried.”

“We are convinced that the affidavits show that there are issues of fact to be determined and that the granting of summary judgment cannot be sustained.”

“We are convinced also that the trial court entered its order for summary judgment on March 26th, before plaintiff’s affidavit was filed and before the time for such filing had expired.”

SCHOTTKY, J.

This is an appeal by the Louisville and Nashville Railroad Company from an order setting aside a summary judgment.

The action was brought by Albert V. Zancaner to recover damages for injuries suffered when a railroad freight car

[838]

door fell upon him while he was in the process of opening it. Zancaner sued the delivering carrier, Southern Pacific Company, and Louisville and Nashville Railroad Company, the initial carrier of the railroad ear. Each answered the complaint and denied negligence.

Louisville and Nashville thereafter, on February 5, 1962, noticed a motion for summary judgment to be heard on February 23, 1962. In support of the motion affidavits were filed by various officials and employees of the railroad. These affidavits show that the freight ear was delivered under load to the Baltimore and Ohio Railroad Company on July 17, 1960; that the car went to several connecting carriers and was finally delivered to the Southern Pacific Company; that the car was inspected before delivery and no exceptions were taken to the condition of the car; that the inspection included an examination and checking of the doors, door guides at the top of the doors, door bottom tracks, door stops, and door fastener; and that the car and all its parts, including its doors and related mechanism, were free of defects and in good mechanical condition and repair.

The record shows the following minute order on February 23, 1962:

‘1 Hearing of notice of motion and motion for summary judgment. The plaintiff is not present in Court or represented by counsel. The defendants are represented in Court by counsel David Rust of the firm of Hagar, Crosby and Rosson. Counsel David Rust presents his motion for summary judgment and argument in support of same.

“The matter stands submitted. The plaintiff is given 30 days to file counter affidavit; the defendant will be given an opportunity to reply. ’ ’

The following minute order was made on the morning of March 26, 1962:

“Hearing of motion and motion for summary judgment. The plaintiffs are

Zancaner v. Louisville & Nashville Railroad

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SCHOTTKY, J.

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