Dawson v. Pacific Electric Railway Co.

SLOSS, J.

The plaintiff brought this action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence. A verdict was returned and judgment entered in favor of the plaintiff. The defendant appeals from the judgment, and from an order denying its motion for a new trial.

The defendant, an electric railway company, was engaged in loading bundles of shakes upon two of its flat-cars, on a wharf at Redondo Beach, in Los Angeles County. The shakes were unloaded from a vessel lying at the wharf. They were first hoisted to the wharf. For this part of the work use was made of the machinery of the vessel, which was not under the control or operation of the defendant. From the wharf the shakes were lifted and swung to the cars by means of an electric derrick belonging to the defendant and operated by its servants. A rope sling was put

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around a load composed of a number of bundles of shakes, and the load was moved from the ship to the wharf, and again from the wharf to the cars, by hooking the cable of the hoisting machinery or the derrick to a loop in the sling. The plaintiff was in the defendant’s employ. His work was to arrange and place the shakes on one of the flat-cars. While one of the loads was being hoisted- from the wharf to the cars, and was passing over the plaintiff, the sling broke, causing the shakes to fall upon plaintiff.

The complaint charged negligence on the part of the defendant in two particulars, first, in carrying the bundles from the wharf to the flat-car by means of a rotten, unsound, or defective rope or sling, and, second, by negligently failing to warn the plaintiff that the load was about to pass, and was passing, over him. The answer denied any negligence on the part of the defendant, and set up negligence on the part of the plaintiff himself.

By its verdict the jury found in favor of the plaintiff on those issues. It is urged by the appellant that the evidence is insufficient to show that it had been guilty of any negligence. The rules of law respecting the duty of the employer in cases like the present were fully and clearly stated to the jury. The court charged that the defendant’s obligation to furnish safe appliances and a safe place to work was not absolute, but that it extended only to the exercise of ordinary care. Under the instructions, the plaintiff was required to establish by a preponderance, of the evidence that the sling was, in fact, defective, and that the defendant either knew of the defective condition, or would, by the exercise of ordinary care, have discovered it. It cannot be doubted that the evidence was sufficient to warrant the jury in finding that the sling was not, in fact, strong enough for the purpose for which it was used. One of plaintiff’s witnesses, who had had many years’ experience as a sailor in examining and using ropes, testified that he had examined the sling just after the accident, and that it was “black and old looking. . . . It was too old; shouldn’t have been used. ... If I had been there on the ground and examined it ... I could have seen that it was an old rope that shouldn’t have been used.” Another witness testified that he had seen the rope, and that “it was véry old”; another that “it was pretty black looking. It didn’t look anything extra good.” The testimony of