Kraft

This appeal is taken from a judgment in favor of plaintiff and against the defendants Acme Stevedore Company, a corporation, and Jack Bishop in the sum of $20,000 for personal injuries received by plaintiff.

The accident happened on June 28, 1927, near a cafeteria at the west end of pier 32 on the San Francisco waterfront. This pier runs in an easterly and westerly direction. Both Kraft and Bishop were employed as operators of small trucks used for transporting freight and towing small, flatcars about the pier. Kraft was operating an electric truck for the Matson Navigation Company while Bishop was operating a gasoline truck for the Acme Stevedore Company. The injuries to Kraft resulted from a collision between these trucks. On the southerly side of the pier and along the center portion thereof there was an aisle down the pier formed by piles of cased pineapple. Bishop operated his truck at a low rate of speed in a westerly direction along the pier toward the cafeteria towing three small' flat-cars. He then made a horseshoe turn near the cafeteria to proceed back in an easterly direction down the pier. Prior to the accident Kraft had been unloading cases of pineapple from his…

I dissent. The trial court gave the following instruction: “It is the duty of all persons so to use their property so as not to cause injury to others and a failure to perform said duty constitutes negligence.” This is more than an inapt expression of the law. It is an entirely erroneous definition of negligence. It was the duty of defendants to exercise ordinary care in the use of their property so as to avoid injury to plaintiff. If they failed to exercise ordinary care under the circumstances they were chargeable with negligence; otherwise they were not. The foregoing instruction was bound to be misleading and would obviously tend to confirm the erroneous impression of many laymen that liability in personal injury cases is predicated upon any use of one’s property causing injury to another. It not only warranted the jury in basing a finding of negligence merely upon the happening of the accident without regard to the amount of care exercised, but in effect directed such a finding, thus making the rule of negligence absolute and not relative. The fact that another instruction imposed upon defendants the duty to exercise ordinary care does not cure the error complained of.…