Silva v. Kavert

BURROUGHS, J.,

pro tem.

This is an action for personal injuries. The cause was tried before a jury. The verdict was for defendants and judgment was entered accordingly. Plaintiff thereafter moved for a new trial and the motion was granted upon the ground of insufficiency of the evidence to sustain the verdict.

Defendants appeal from the order granting a new trial. Appellants’ sole contention in support of the appeal is that the plaintiff’s version of the accident is impossible of credence because of the physical facts as shown by the evidence. Plaintiff was at work as a stevedore in the employ of the Bayside Steamship Company on pier 17 adjoining The Embarcadero, San Francisco. Much of the testimony given refers to a blackboard map made by witnesses with the assistance of the attorneys which is not a part of this record.

However, after a careful study of the evidence as transcribed it appears that pier 17 extends in an easterly and

[387]

westerly direction from The Embarcadero into the bay. Through the center of the pier from west to east extends a driveway estimated to be twenty-five feet wide. This driveway is for the use of the public in carrying freight to or from the pier and is marked off from the sides by a seemingly slight depression variously described, but serving the purpose of defining the driveway from the side spaces immediately north and south of it in which freight is stacked to be loaded on ships or carried from the pier. On the day of the accident a ship was on the north side of the pier, and this plaintiff with another stevedore in the employ of the Bayside Steamship Company was engaged in carrying freight on a flat truck from the ship across the driveway and there stacking it. Each flat truck was handled by two men, one pulling on the end of the tongue and one pushing from the rear. Plaintiff’s story is that he and his companion worker had placed their flat truck in the space allotted, south of the driveway parallel to the driveway, and that the north side of the flat truck was about four feet south of the south line of the driveway, the tongue of, the flat truck being to the east. That plaintiff and companion were in the act of removing a heavy case from the truck to the floor south of the truck; that plaintiff was on the north side of said flat truck pushing the case toward the south side, his companion pulling from the south side, with plaintiff facing south and bracing himself on his right foot which was farthest to the north, when the accident happened. It is undisputed that in some manner one of the wheels of a Ford tractor or its trailer driven by one of the defendants from the western entrance of the pier toward the east ran over the plaintiff’s right foot, the injury being on the outside of the foot from the toe toward heel, and more or less on the front of the instep. There is no question as to this fact nor as to the extent of the injury.