McAlpine v. Laydon (1896) · DecisionDepot

McAlpine v. Laydon

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Nov 24, 1896 No. S. F. No. 405Published

Before: Henshaw

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Holding. The court held that the trial court correctly granted a new trial because there was sufficient evidence of the defendant's negligence and the decedent's lack of contributory negligence to warrant submission of the case to a jury.

Issues

Whether the trial court erred in granting a new trial after initially ordering a nonsuit.
Whether there was sufficient evidence of defendant's negligence regarding the safety of the appliance to reach a jury.
Whether the evidence of the decedent's contributory negligence was sufficient to justify a nonsuit.

Disposition. affirmed

Quotations verified verbatim against the opinion

“There was thus at least some evidence in the case tending to show that the appliance in question was unfit and unsafe, and upon this ground, also, the trial judge should not have granted the nonsuit, and withdrawn the case from the jury.”

Synopsis

Negligence — Contributory Negligence — Nonsuit — Conflicting Evi. deuce—Order Granting New Trial.—Where there is some evidence on behalf of the plaintiff tending to show negligence on the part of the defendant, and to negative contributory negligence on the part of the plaintiff, the question of negligence and contributory negligence should be submitted to the jury, notwithstanding a sharp conflict of evidence on both subjects in the evidence presented by different witnesses called by the plaintiff; and it is error to grant a nonsuit in such case, and an order granting a new trial for such error will be affirmed.

Henshaw, J. The action is prosecuted by the heirs of W. S. McAlpine to recover damages of defendants for negligently occasioning his death. At the time of the accident the Young America pile-driver, owned and operated by defendants, was engaged in pulling out piles driven in the bay of - San Francisco. McAlpine was employed in connection with the work as a rafts-man. A pile suddenly leaving its bed released the strain and a hook struck the .headblock, splitting it and knocking off a piece which fell about seventy-five feet? striking McAlpine upon the head and killing him.

Defendants were granted a nonsuit, but upon motion the judge reopened the case for a new trial, and from his order defendants prosecute their appeal.

Newly discovered evidence was one of the grounds urged, but the court granted the motion, believing it had erred in ordering a nonsuit.

The claim of plaintiffs was that the headblock had been improperly bolted and fastened; that for the work [71]of pulling piles it should have been crossbolted to prevent the very splitting which occurred.

The grounds of motion for a nonsuit were: 1. The failure of plaintiffs to show negligence upon the part of defendants; and 2. The contributory negligence of deceased in placing himself where he was when struck.

In considering these matters it is to be remembered that the trial court, in passing upon the motion for a nonsuit, was not called upon to substitute its judgment for that of the jury, and thus to decide the motion in accordance with what it might conceive to be a preponderance of the evidence. If, upon all of the material issues joined, the plaintiffs had offered some evidence in legal contemplation fairly tending to prove them, then even though there was conflicting evidence offered by other witnesses for plaintiffs, the determination of the questions and the decision upon the conflict was for the jury-

This court, in reviewing the ruling of the trial judge, ' is governed by the same considerations.

The second ground urged upon the motion for non-suit, namely, the contributory negligence of deceased, may be briefly disposed of. One witness called by plaintiffs testified that deceased should not have been where he was at the time of the accident. Another witness, the foreman of the dredger, swore that deceased .was standing where he should have been—in his proper and usual place. Both of these witnesses were in the employ of defendants.

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The trial court, in passing upon the motion for a new trial, and reviewing its rulings upon the motion for a nonsuit, concluded that it had erred, and that there was evidence in plaintiffs’ case tending to establish the unfitness of the appliance in question. In this wTe think the court wTas correct. The witness Pengally superintended the construction of the pile-driver Young America, and was shown to be an expert upon the matter. Of his testimony, it must be said that it is in some respects unsatisfactory, and that its statements are at times self-contradicting, but enough may be clearly gathered therefrom to show that the witness testified [73]that if the pile-driver Young America was to be used for pile-driving, the headblock employed was sufficiently strong and secure without crossbolting. If, however, it was to be used for pile-pulling, then it was an unsafe and unfit appliance unless crossbolted. Asked whether, when he constructed the Young America, he crossbolted the headblock, he replied: “ I do not say that I did not crossbolt it. I think I did. If I omitted to do it, it would be because I thought it was not necessary. If a pile-driver had to be used to draw piles, and there was any extra strain coming upon the wood, I would take extra precaution to fasten it accordingly; but for ordinary pile-driving, a solid piece of white oak that size, I do not see how it is possible to split.” Asked further) whether he would consider the headblock used upon the Young America at the time of the accident to be a safe apparatus for pulling piles, without any crossbolts, he answers: “I would not consider it-so for pulling piles. I mean to say, if bolts are put there, it is certainly safer and stronger, but it is a question of judgment as to whether it is not strong enough without bolts.” Again, Robert Cheeseman, an expert who had constructed fifteen or twenty pile-drivers, testified, in effect, that he always used crossbolts for safety to keep the headblocks from splitting; and J. R. McAlpine, a cousin of deceased, testified that, shortly after the accident, he examined six different pile-driving and pile-pulling-machines in the harbor, and that the headblocks of each and all of them were crossbolted, saving that upon the Young America.

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