Lemmermann v. Pope Talbot

HAVEN, J.

Plaintiff appeals from a judgment of non-suit rendered upon motion of the defendant at the close of the trial.

[1]

It is settled law in this state “that a court may grant a nonsuit only when, disregarding conflicting evidence and giving to plaintiff’s evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff if such a verdict were given.”

(Perera

v.

Panama-Pacific Int. Exp. Co.,

179 Cal. 63, [175 Pac.

454]; Estate of Caspar,

172 Cal. 147, [155 Pac. 631].) The question presented by the appeal is whether or not the facts disclosed by the evidence brought this case within the rule above stated.

The suit was for the recovery of damages resulting from personal injuries received by plaintiff while employed as a clerk’s helper in the lumber-yard of defendant, in which business he had been engaged for about four years prior to the accident. In the course of his employment he was "ordered by the foreman in the lumber-yard to help a certain tally clerk, named Lynch, who is designated by plaintiff as his “co-laborer,” in moving lumber from a pile upon

[194]

which Lynch was standing to an adjacent wagon. Plain tiff testified that this pile was about nine feet high. The pieces of lumber forming the same were. not of uniform length, and, when piled, left uneven projections at the rear of the pile. Upon receiving instructions to report to Mr. Lynch, plaintiff climbed up the rear end of the pile. He testified that he took that as "the best way to get up.” The wagon, which was being loaded, was standing at a distance of five feet from the lumber pile upon which Lynch and the plaintiff stood. Between that pile and the wagon was a smaller pile of lumber about three feet in height and four feet in width. At the time of the accident the lumber on the wagon had been piled to a distance of four feet from the ground. The driver of the wagon desired assistance in placing the lumber on his wagon, and Lynch instructed plaintiff to go to the wagon for that purpose. A plank of lumber three inches thick, twelve inches wide, and sixteen feet long had been placed across the top of the pile of lumber and the lumber upon the wagon, extending beyond both the pile and the wagon. Plaintiff testified that, when Lynch told him to go down and help the teamster, he walked to the rear of the pile with the intention of going down the same way that he had come up, but just then there was a crane coming over with a load of lumber, which temporarily interfered with his descent. On that account he walked back to Lynch and waited a few minutes, when the latter drove a lumber-hook into the plank and grabbing hold of it said, "Go ahead down, and I will hold the plank.” In response to that request, and while the plank at the upper end was so held by Lynch, and with no one holding the lower end thereof, plaintiff sat upon the plank and shoved himself down with his hands. When he was between the lumber pile and the wagon the plank slipped out of Lynch’s grasp and fell, precipitating plaintiff to the ground and causing his injuries. Asked why he attempted to slide down the plank instead of returning to the ground in the same manner in which he had come up, or instead of jumping from the piled lumber upon which he was standing to the smaller pile nearer the wagon, plaintiff stated that he did so because he had orders to go down the plank, and that it looked safer to him "to slide down that plank than to drop down