Brett v. S.H. Frank Company

SHAW, J.

Defendant appeals from the judgment and also from an order denying its motion for a new trial.

Plaintiff’s action is for damages alleged to have been caused by defendant’s negligence. The main defense is that the injury to the plaintiff was due to his own negligence. The cause was before this court upon a former appeal from an order granting a new trial. (See

Brett

v.

Frank & Co.,

153 Cal. 267, [94 Pac. 1051].) The order was there affirmed. The present appeals are from the judgment and order resulting from the second trial. It is claimed by defendant’s counsel that the judgment and order here in question are in direct conflict with the law applicable to the evidence as settled upon the previous appeal. They also contend that the opinion upon the former appeal accurately states the law which should control the decision, irrespective of the doctrine of the law of the case. The plaintiff claims that after the decision of the former appeal the complaint was amended by charging additional acts of negligence, not involved in that appeal, and, hence, that neither the doctrine of the law of the case, nor the rule of law laid down in the former opinion, applies to the case as it now stands.

The manner of the injury was as follows: The plaintiff

[737]

was employed by defendant as a workman in a tannery carried on by it in a building two or more stories high. An elevator was used in carrying the hides from the rolling room, on the first floor, to the drying room on the second floor. The drying room was back of the elevator, so that in order to go thereto from the elevator opening it was necessary to go out of the elevator, turn around and pass by the left side thereof and on through a door in a partition wall running across the building behind the elevator shaft. This passageway to the left of the elevator was about nine feet wide. Across it there was a rise of some five inches in the floor, made to permit the operation of a pulley on a shaft beneath the floor. To allow the passage of a truck over this rise, the floor was made to slope gradually off about five feet each way. The crest of this rise was immediately over the shaft on which the pulley below was fixed and was on a line which, if extended, would pass in front of the elevator entrance and about one foot therefrom. The abrupt edge of this rise was parallel to and eighteen inches from the side of the elevator. It extended about six feet farther to the front than the elevator. To the right of the elevator entrance, and sixteen inches away, there was an opening in the floor, fifteen inches by twenty-four inches in size, through which a belt was rapidly running from the ceiling above downward through the floor. The plaintiff, when hurt, was propelling a truck loaded with hides from the rolling room below to the drying room on the second floor. It was a four-wheel truck, eight feet long and four feet wide over all) the two axles being about five feet apart, and it was moved by means of a handle or tongue fastened with a king-bolt so as to be turned in any direction. He had pulled the truck into the elevator so that on arriving at the second floor it was necessary to push it off backward. To reach the drying room he should have pushed it straight back beyond the rise in the floor and then forward over the rise past the elevator into the drying room. In pushing it out of the elevator it swerved to one side so that the rear wheel ran against the abrupt edge of the rise, thus making it necessary to pull it forward a little to give it a new direction and back it again beyond the rise. In doing this he did not step back into the elevator, because he feared that some one below or above might start it. He therefore stepped back on the floor toward the right hand side of the