Opinion
As Modified on Denial of Rehearing Oct. 21, 1975.
References To This Case
Opinion on pages 726-765 omitted.
HEARINGS GRANTED [*]
For Opinion on Hearing, see 148 Cal.Rptr. 596, 583 P.2d 121.
[124 Cal.Rptr. 497]Morris & Polich by Landon Morris, Los Angeles, for Southern Pacific Transportation Co.
Morgan, Wenzel & McNicholas, and Edward L. Lascher, Ventura, for White.
Richard C. Voorhies and Al Schallau by Al Schallau, Westchester, for plaintiff and respondent.
FLEMING, Associate Justice.
During the course of plaintiff Ramon A. Campbell's employment by Pacific Motor Trucking Company (PMT) as a loader of trailers on railroad flatcars at a Southern Pacific Transportation Company railyard, he sustained severe injuries when the White Motor Company tractor he was driving rode off the side of a flatcar. The jury returned a verdict of $487,230 against defendant Southern Pacific for negligence and against defendant White for product liability. Both defendants appeal the judgment.
Campbell aggravated his injuries when he fell off the x-ray table at the hospital after the accident. His malpractice action against the hospital, doctor and x-ray technician and his action against White and Southern Pacific were consolidated for trial. In addition, PMT intervened to recover workmen's compensation benefits paid to Campbell.
We have concluded the judgment must be reversed as to each defendant, because (1) no evidence supported the judgment against Southern Pacific, and (2) White was entitled to an instruction on assumption of risk.
1. Southern Pacific engaged its wholly-owned subsidiary PMT to load trailers on railroad flatcars at its yard on North Mission Street in Los Angeles. Southern Pacific agreed to reimburse PMT for equipment purchased for use in trailer-flatcar operations and for repair and service of the equipment. In 1966 PMT purchased ten White tractors (trailer trucks). Thereafter PMT experienced considerable difficulty in maintaining the power-steering units on those tractors.
In loading trailers onto railroad flatcars for PMT, Campbell would attach his tractor to the assigned trailer and back it up a ramp and onto a train of flatcars. Metal endplates provided bridges between flatcars. The ride was not even and level, because the flatcars sometimes differed several inches in height, the endplates were frequently warped, the flatcars had saddles in the middle to secure the trailers, and the saddles had three-inch risers on each side to allow tractor and trailer to cross. Six-inch safety rails flanked the sides of the flatcars.
Shortly after midnight on 18 May 1968 Campbell had secured a trailer on its flatcar and was driving his tractor, No. A-8862, back across the remaining empty flatcars at about five miles an hour. Three or four flatcars from the end of the train the steering wheel jerked to the left, and the tractor struck the left safety rail. Campbell took his foot off the accelerator and tried to steer to the right, but the wheel jammed. Then the wheel gave way, and the tractor hit the right safety rail. Campbell pulled the wheel back to the left, the wheel jerked out of his hands, the tractor rode off the left side and landed against a flatcar on the next track.
[124 Cal.Rptr. 498]Campbell's expert witness, Dr. Youngdahl, opined that a design defect in the power-steering system of the tractor caused the accident. Parts of the power-steering unit were mounted on the tractor frame, while other parts were attached to the sheet-metal cab. Differences in height between the flatcars subjected the system to shock forces which demanded strong mountings. Torsional forces exerted during a turn caused deflection in the power-steering gear, and the power-steering actuator tended to bind. With the actuator bound, the power steering tended to stick in the direction of the bind. Additionally, improper placement of the power-steering unit subjected its hoses to rubbing and abrasion. Loss of fluid from a leaking hose would cause extra stress on the system and increase the likelihood that contaminants might enter the system. In Youngdahl's opinion, the long history of power-steering repair and fluid loss on the ten White tractors gave notice that something was wrong with the system.
The case against Southern Pacific proceeded on two legal theories: common law negligence, and breach of the statutory duty of an employer to furnish a safe place of employment for its employees. These are the only theories Campbell may pursue on appeal. (Bertero v. National General Corp., 13 Cal.3d 43, 50, 118 Cal.Rptr. 184, 529 P.2d 608.) Neither theory finds support in the evidence.
The claimed negligence of Southern Pacific was based upon defective design and improper maintenance of the power-steering system of the White tractor. Campbell has not shown valid grounds for attributing responsibility for that negligence to Southern Pacific. No evidence established that Southern Pacific was required to anticipate the existence of a peculiar risk of physical harm from the mechanical operation of the power-steering system on the tractor so as to make Southern Pacific liable for the negligence of PMT in that operation. (Cf. Restatement, Second, Torts, §§ 416, 413 Comment b.) Nor is there any valid indication that Southern Pacific fell under a nondelegable duty to see that its independent contractor properly maintained its equipment. White designed the power-steering system; PMT maintained it; Southern Pacific had nothing to do with either. Southern Pacific was responsible for the condition of the yard and the flatcars, but the condition of yard and flatcars did not contribute to the accident. Dr. Youngdahl opined that the condition of the flatcars caused stress on the tractor, but his opinion went to the reasonableness and competency of the design of the power-steering mechanism. Campbell never claimed that malfunction of the power-steering system resulted from the condition of the yard and the flatcars.
The theory of statutory employment fails for similar reasons. Campbell did not establish Southern Pacific's responsibility for the unsafe condition of PMT's tractor. As landowner and general contractor to PMT, Southern Pacific could have been a statutory employer under existing law, but only for employment premises it controlled, not for defective appliances furnished by Campbell's actual employer (McDonald v. Shell Oil Co., 44 Cal.2d 785, 788-791, 285 P.2d 902) and used in operations which Southern Pacific did not direct or control (Kuntz v. Del E. Webb Constr. Co., 57 Cal.2d 100, 106-107, 18 Cal.Rptr. 527, 368 P.2d 127). Here, the place of employment was the PMT tractor, not the Southern Pacific yard or train, and neither yard nor train caused the accident. The trial court correctly instructed the jury that '[w]here the general contractor retains only the right of general supervision over the premises to bring about a satisfactory completion of a subcontract, he is not an employer subject to the duties imposed by the Labor Code.' (Former BAJI 8.33; Kuntz v. Del E. Webb Constr. Co., 57 Cal.2d 100, 107, 18 Cal.Rptr. 527, 368 P.2d 127.) The evidence uniformly indicated that Southern Pacific retained no more than general supervision over PMT's equipment.
[124 Cal.Rptr. 499]Southern Pacific agreed to pay PMT for the purchase, repair, and maintenance of PMT's equipment, but as is the case in the relationship of any general contractor with its subcontractor the costs of the latter's operation are taken care of one way or another in the contract price. We see no significance here in the particular form in which payments were made for elements of PMT's costs. The trial court found that Southern Pacific was not Campbell's employer for purposes of the Federal Employers' Liability Act (see also Kelley v. Southern Pacific Co., 419 U.S. 318, 95 S.Ct. 472, 42 L.Ed.2d 498), and Campbell established no other form of employment relationship.
2. We see no validity in White's contention that PMT's negligence cut off as a matter of law White's responsibility for defective design of the power-steering system. A manufacturer may be liable for foreseeable misuse of its product. (Balido v. Improved Machinery, Inc., 29 Cal.App.3d 633, 645, 105 Cal.Rptr. 890; Thompson v. Package Machinery Co., 22 Cal.App.3d 188, 196, 99 Cal.Rptr. 281.)
But White's second contention has merit. The trial court prejudicially erred in refusing to instruct the jury on the defense of Campbell's assumption of the risk of product liability. (McGoldrick v. Porter-Cable Tools, 34 Cal.App.3d 885, 891, 110 Cal.Rptr. 481.) The following testimony supported the giving of the instruction:
Edward Ramirez. He drove tractor No. A--8862 for twenty minutes during the shift before Campbell's accident. He noticed that the power steering sometimes grabbed, sometimes seemed loose. Ramirez placed a red tag on the tractor. A 'red-tagged' tractor must be repaired before further use.
Campbell. At the beginning of the midnight shift his supervisor, Armstrong, ordered him to drive tractor No. A--8862. Another driver told Campbell that the tractor was red-tagged, that the power steering was acting up. Campbell did not see a red tag but he told Armstrong a driver said it was red-tagged. Armstrong said the tractor was not red-tagged, and ordered him to drive it. As he drove the tractor, Campbell felt sloppiness in the steering system.
Armstrong. He assigned Campbell to drive tractor No. A--8862 but he had no conversation with Campbell in which Campbell refused to drive the tractor and told him another driver said the truck was red-tagged. Armstrong had no knowledge of problems with the tractor's power-steering system prior to the accident.
To establish assumption of the risk of product liability, the evidence must show that plaintiff had knowledge of the particular risk involved, appreciated its magnitude, and voluntarily assumed that risk. (Smith v. Dhy-Dynamic Co., 31 Cal.App.3d 852, 857, 107 Cal.Rptr. 907.) From the above evidence the jury could have concluded that Campbell knew tractor A--8862 was red-tagged for power-steering trouble, that he did not object to his supervisor's order to drive the tractor, that he felt sloppiness in the steering system, and that he voluntarily assumed the risk of a power-steering mishap. Although juries are often reluctant to find that plaintiff has assumed a particular risk (Prosser, Law of Torts, 4th ed., p. 525), defendant is nonetheless entitled to take its theory of the case to the jury. (Stickel v. Durfee, 88 Cal.App.2d 402, 406, 199 P.2d 16.)
Campbell offers no effective response to this contention. The clerk's and reporter's transcripts show that White offered an accurate and completed instruction on assumption of risk. (Cf. Timmons v. Assembly of God Church, 40 Cal.App.3d 31, 38, 115 Cal.Rptr. 917.) White violated no state industrial safety orders. (Cf. Finnegan v. Royal Realty Co., 35 Cal.2d 409, 423, 431, 218 P.2d 17.) Whether Campbell felt compelled to drive tractor No. A--8862 and whether he appreciated the particular danger arising from such driving, were questions of fact. (Brooks v. Allis-Chalmers Mfg. Co., 163 Cal.App.2d 410, 415, 329 P.2d 575.) [124 Cal.Rptr. 500] Campbell need not have understood the intricacies of the design defect in the power-steering system in order to assume the risk; it would suffice if he knew of the malfunction of the power-steering unit and the potential danger of that malfunction.
To summarize, Southern Pacific is entitled to judgment notwithstanding the verdict. White is entitled to a new trial with proper instructions.
The judgment is reversed, and the cause is remanded to the trial court for further proceedings in accordance with this opinion.
ROTH, P. J., and BEACH, J., concur.
[*] The cause was retransferred to the Court of Appeal, First District, Division One, with directions. See 57 Cal.App.3d 613 for subsequent opinion.
The trial court granted non-suit in favor of the doctor. In a special verdict the jury found that PMT's negligence contributed to Campbell's injuries, and the trial court ordered that PMT take nothing by its complaint-in-intervention. The jury returned a verdict of $36,850 against the hospital and x-ray technician. None of these parties have appealed.