Opinion
No. 18233
6-10-1959
Peter G. FLOREZ, Plaintiff and Respondent, v. GROOM DEVELOPMENT CORP., a corporation, Glenn L. Groom et al., Defendants and Appellants. *
Carroll, Davis, Burdick & McDonough, San Francisco, for appellants. Naphan & Harbaugh, Oakland, Lewis F. Sherman, Berkeley, of counsel, for respondent.
Peter G. FLOREZ, Plaintiff and Respondent,
v.
GROOM DEVELOPMENT CORP., a corporation, Glenn L. Groom et al., Defendants and Appellants. *
June 10, 1959.
Rehearing Denied July 2, 1959.
Hearing Granted Aug. 5, 1959.
Carroll, Davis, Burdick & McDonough, San Francisco, for appellants.
Naphan & Harbaugh, Oakland, Lewis F. Sherman, Berkeley, of counsel, for respondent.
HANSON, Justice pro tem.
This is an action brought by the respondent Florez, an employee of Paul W. Johnson, Inc., a subcontractor of the appellant Groom Development Company, Inc., against the general contractor only, and Glenn L. Groom, individually, to recover damages for injuries he sustained while engaged in furthering the work assigned to him by his own employer and not by the appellants.
The main question presented by the appeal is whether the evidence presented discloses any legal liability on the part of the appellants (the general contractor and Glenn L. Groom, individually) to the plaintiff-respondent. A subsidiary question is whether the instructions given to the jury were prejudicial.
The facts necessary to be stated which are most favorable to the plaintiff are the following:
Defendant Groom Development Company, Inc., was the general contractor for constructing houses in a subdivision located in Oakland, California. Other than the carpentry work, all work in the tract was performed by several subcontractors over whose employees defendants-appellants had no control.
Plaintiff is a sheet rock finisher and taper and was at the time in question in the employ of Paul W. Johnson, Inc., which had the subcontracts for painting and sheet rock installation in the houses to be built in the above mentioned subdivision. Plaintiff at the time of the accident had been employed by the subcontractor for about a year, 90% of this time having been spent working at the subdivision.
Plaintiff testified that on Monday, January 7, 1957, he arrived at the construction project at approximately 8:30 a. m. and immediately started working in one of the houses under construction. He stated that he had not worked on this particular house before, but that all of the houses in the tract were similar, and that he had worked on other houses there.
With the exception of a common laborer employed by appellants by the name of Palmer, plaintiff was the only person working on the particular house at which the accident occurred. The plaintiff had seen Palmer working inside the house during the morning but did not see him working around the house thereafter.
At noon on the day of the accident, Florez had lunch in the driveway of the house in which he was working with several other employees who were working on an adjoining house. At this time, he observed a water faucet at the corner of the garage. However, he did not observe anyone using the water faucet either then or thereafter.
In performing his work, plaintiff was required to use a paste--a dry material furnished to him which had to be mixed with water before it could be used. On the morning in question, before going to the job site, he had mixed a batch of paste, which he took with him, but between 3:00 and 3:30 that afternoon, he ran out of the paste, and it became necessary for him to mix some more. Accordingly, plaintiff took two five-gallon containers, one in each hand, and walked along thr trench to where the faucet was, at which place he found a plank laid across the trench which was about five and one-half feet deep, and 24 or 25 inches across.
The plaintiff described the plank extending over the ditch as being approximately six inches wide, four inches thick, and four or four and one-half feet long. Without further investigation, he placed one of the cans he was holding on the ground and, in order to get water from the faucet into the other can he was carrying, he proceeded to place both feet on the bank which was so narrow that he had to place one foot in front of the other. As he reached down to turn on the faucet with his left hand, he suddenly fell.
His testimony on the fall was as follows: 'I had two pails of water [sic, waterpails] with me. I put one down, and carried one with me, and I stepped on the plank to reach over to open spigot, and as I stood on the plank I had both feet on it, it just--I don't know whether I fell right straight through, and I had a sharp blow on my forehead, and I didn't come to for a few seconds later. So actually as I stepped on the plank I didn't have a chance to get to the spigot.'
He had fallen into the trench and the board had fallen into the trench with him. In falling into the trench, he had been hit in the face by one end of the plank.
Leon Palmer, called as a witness under Code of Civil Procedure, section 2055, by the plaintiff, stated he was employed by the Groom Development Company as a laborer on the subdivision project where plaintiff was injured; that on the Friday prior to the date of the accident he was directed by his own foreman to assist two painters--coemployees of the plaintiff--to help the painters put up a staging. The staging consisted of two six foot high sawhorses with planks on top for a flooring; that it was necessary, because of the trench, to place a plank across the trench so two of the feet of one of the sawhorses could rest thereon. He used a plank belonging to the defendant Groom Company, which he designated as a 'header' and stated it was four by six. He testified that he knew the board was not safe, but that he had declined to use either a two by ten or a two by twelve, both of which were available, under fear of being fired; that he had found it necessary on Friday to shovel dirt out of the bank to make a cradle for the plank which when placed over the trench was level with the foundation across which it extended about four inches. After he had finished helping to erect the staging, he left to do other work and had nothing further to do with the painters. He further testified that when he returned on Monday, after accident, to take plaintiff to the hospital, he saw the board which he had placed over the trench the Friday before the accident lying in the trench.
That Friday afternoon upon completing their painting at the house in question the painters removed the staging and then proceeded to another house to paint it.
Mr. Merlin Smith Groom was called as a witness under Code of Civil Procedure, section 2055, and his testimony showed that two by tens or two by twelves are the standard size planks used for walking over whether on scaffolds, over ditches, or otherwise and are safer than six by sixes or four by sixes to use because of their added width. He also testified that laborers were employed by the general contractor to clean up around the area and that it was defendants' policy to let their laborers 'give a hand' to the various subcontractors whenever the latter were short of help, and that it would not have been unusual had Mr. Palmer been allowed to assist the painters in putting up the scaffold.
Werner Feldhaus, one of the painters mentioned above, testified that after the staging had been erected, the painters worked on it most of the day Friday, but before the work day ended, the two painters removed all of the staging. Feldhaus testified that when the staging had been removed by them, there was no plank of any kind left lying across the ditch.
The jury returned a verdict against defendants for $32,500 on which judgment was entered and from which judgment this appeal has been taken.
From the foregoing recital of all the material facts stated most favorably for the plaintiff it appears that Palmer, the employer of the general contractor, was loaned to the painting employees of the subcontractor--and as a consequence to the subcontractor--to assist in erecting the staging to be used by the painters in the furtherance of the subcontractor's business. It was the duty of the subcontractor and not of the general contractor to erect and remove such staging as was necessary for the use of the painters. Palmer was loaned to assist the subcontractor's painters to erect the staging only and not to remove it when it had served its purpose. The plank was placed by Palmer across the ditch to serve as a base for two legs of a sawhorse and for no other purpose. It is not claimed, and indeed it could not be, that the plank was too short or too narrow to serve the purpose for which it was used, as it in fact served that purpose until the painters removed the staging. If the testimony of the painter that the staging and the plank were removed from the trench on Friday is not true, then the negligence, if any, in not removing the plank was that of the painters employed by the subcontractor and not the contractor's; as the facts clearly indicate Palmer was not loaned to assist in removing the staging. Assuming then that the jury could have found the plank was not removed on Friday or at any time prior to the accident, the basis of any recovery by the plaintiff must be predicated on the theory that the general contractor was negligent in not removing the plank. On that point there is no evidence that the general contractor had any notice or knowledge that the plank continued to rest across the ditch, if such was the fact, or that, if it did, it constituted a hazard to any employee of the subcontractor.
The question whether on the facts the appellant's were or were not legally liable to the plaintiff turns not only on the issue of their negligence, if such there was, but on the plaintiff's contributory negligence, if any, as well. Accordingly, we proceed to discuss both points together.
The rule of law which applies to the case at bar is as set forth in Pauly v. King, 44 Cal.2d 649, 653, 284 P.2d 487, 489: 'An employee of a subcontractor occupies the relationship of an invitee to the main contractor. [Citations.] 'The applicable general principle is that the owner of the property, insofar as an invitee is concerned, is not an insurer of safety but must use reasonable care to keep his premises in a reasonably safe condition and give warning of latent or concealed perils. He is not liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care.' [Citations.]'
It is readily apparent that the plaintiff knew that he would have to put his full weight upon the plank in order to get the water. He was aware of the plank's dimensions, and the condition of the ditch over which it lay. In the exercise of ordinary care for his own safety, plaintiff should have determined if the plank was safe for his intended use, and he was in the best position to make such a determination. Mula v. Meyer, 132 Cal.App.2d 279, 287, 282 P.2d 107. In failing to ascertain whether or not the plank was in a position of safety and would support his weight, the plaintiff had clearly failed in the duty imposed upon him for his own self-protection.
The instant case is comparable to the situation discussed in King v. Griffith, 65 Cal.App.2d 114, 150 P.2d 8. In that case it should be noted that the appellate court affirmed a nonsuit, and the Supreme Court denied a hearing. The plaintiff attempted to step across a sewer ditch approximately two feet wide while carrying a bucket of cement in his hand. A cave-in occurred at the edge of the ditch. The court held that the plaintiff should have taken precaution to see if the soil was loose or there was danger of a landslide before stepping across the ditch, saying that the plaintiff was actually in a better position than anyone else to know whether or not the condition was safe. The court also said that the plaintiff should have taken time either to have filled in the loose dirt or to have walked around the ditch if his own safety was involved.
The witness Palmer, as stated above, assisted the two painters in setting up the so-called staging, and in the course of completing that act he placed the plank in question across the ditch so two legs of the sawhorse would rest upon it. He then left and never saw the plank again until after the accident. One of the two painters testified he and his copainter removed the staging and the plank on the same day it was put up and that when they left the plank was no longer over the ditch. This testimony was not contradicted. Who then replaced the plank, if it was replaced, over the ditch? We cannot speculate as to the answer. As there is a complete want of evidence on the subject, the plaintiff failed to show any liability on the part of the defendants.
In Clyde v. Mitchell, 14 Cal.App.2d 365, 58 P.2d 205, in which case a judgment of nonsuit in favor of defendants was affirmed, the plaintiffs had leaned against a guard rail on the roof of the building which collapsed resulting in their fall to the ground below. The court stated: 'While, the owner or occupant of premises is bound to use ordinary care for the protection of an invitee, it is stated in Shanley v. American Olive Company, 185 Cal. 552, 197 P. 793, 794, that such owner is entitled to assume that the invitee 'will perceive that which would be obvious to him upon the ordinary use of his own senses.''
There is no testimony that there was anything about the condition of the plank or the ditch which was hidden or concealed from the plaintiff. The situation is like that discussed in Mautino v. Sutter Hospital Association, 211 Cal. 556, 296 P. 76, 77, in which a judgment for plaintiff was reversed, the court stating: 'If it was negligence for the defendant to maintain the floor in the condition described by the plaintiff, there appears to be no escape from the conclusion that it was negligence for the plaintiff, with full knowledge of such condition, to continue in the use thereof.'
In Anderson v. Western Pacific R. Co., 17 Cal.App.2d 244, 61 P.2d 1209, we reversed a trial court judgment in favor of the plaintiff on the grounds that the evidence produced by the plaintiff, as well as his own testimony, established that he failed to exercise ordinary care for his own safety and that his conduct constituted contributory negligence as a matter of law.
The plaintiff in the instant case has offered no explanation as to how he actually fell into the ditch. If it be inferred from the evidence that the board was too narrow to support his weight or was too short to support his weight across the ditch, these facts were not concealed or hidden. The dimensions of the plank were clearly observable to the plaintiff and he was well aware of the width of the ditch. See also Nagle v. City of Long Beach, 113 Cal.App.2d 669, 248 P.2d 799, in which a judgment of nonsuit was affirmed by the District Court of Appeal on the ground that the established rule in California is that an invitee to an incompleted building in process of construction is invited to use such building in its condition then existing, and that where the dangerous condition of the premises is obvious, the owner is entitled to assume that an invitee will perceive that which would be obvious to him upon ordinary use of his own senses.
The case is almost identical to the facts in Dingman v. A. F. Mattock Company, 15 Cal.2d 622, 104 P.2d 26, wherein a trial court judgment for the plaintiff was reversed by the Supreme Court. In that case the plaintiff stepped on 2 X 4 board laid across an open stairwell which broke, causing him to fall and incur injuries. In the Dingman case there was evidence that there had been a similar board across the stairwell for several days prior to the day of the accident and the same had been used by the defendant's employees and by the plaintiff. Even though the court concluded that this plank might have been observed by the employer's foreman, it held: '* * * As the appellant [employer] had no greater opportunity to observe the condition of said board than the respondent [plaintiff], and respondent failed to observe its dangerous condition, we are compelled to hold that the appellant did not know of the dangerous condition of said board. In this connection the following language found in Slyter v. Clinton Const. Co., 107 Cal.App. 348, 355, 290 P. 643, 646, appears to be pertinent: 'From the facts it is clear that the plaintiff, as readily as the appellant, * * * by the exercise of his faculties of sight and judgment * * * could have observed and known of the danger * * *' In like manner the opportunities of the respondent in this action to observe the condition of the plank across the open stair-well were equal to those of the appellant contractor, or his foreman, or any of the appellant's employees, and, as the respondent failed to observe the dangerous condition in the board over said stair-well, the only rational conclusion to be deawn from these facts is that the contractor was likewise ignorant of such dangerous condition.' 15 Cal.2d at page 626, 104 P.2d at page 29.
It should also be noted in Dingman v. A. F. Mattock Company, supra, that the court discussed the obvious danger inherent in walking on a narrow plank: '* * * It is true that on account of the width of the board it might be apparent to anyone attempting to walk over it that there was danger of falling from it and into the stairwell below, but that was not what happened to respondent.' 15 Cal.2d at page 625, 104 P.2d at page 28.
In the instant case that is exactly what happened to the plaintiff. He fell from a board which, from the dimensions known to him, was either too short or too narrow to support his weight, or too thick to be used safely.
The defendants next contend that the trial court erred (1) in refusing them permission to amend their answer so as to set up assumption of risk as a defense, (2) in refusing to give instructions tendered by defendants with respect to assumption of risk, and (3) in giving an instruction which read as follows: 'During the trial of this case you may have heard something said about 'assumption of risk.' I instruct you that, under the evidence in this case, the doctrine of assumption of risk is not involved in any way. I have instructed you concerning the defense of contributory negligence, and those instructions will govern your deliberations on that issue.'
It appears that the trial court based his ruling refusing to permit the answer to be amended on the ground that the issues were settled at the pretrial hearing, which issues did not include the issue of assumption of risk, and hence the request came too late. On the theory then that the doctrine of assumption of risk was out of the case, the trial judge not only refused to give any instructions on the subject, but, as stated above, specifically warned the jury the doctrine could not be considered by them. We think that instructions on the subject should have been given. In the case of Covely v. C. A. B. Construction Co., 1952, 110 Cal.App.2d 30, 242 P.2d 87, the trial court had given an instruction on assumption of risk similar to the one proposed by defendants here. Plaintiff on appeal argued that this constituted prejudicial error. In affirming judgment for defendants, the court, speaking through Mr. Justice Mc Comb, 110 Cal.App.2d at page 34, 242 P.2d at page 89, held that it was not prejudicial error and stated: '* * * plaintiffs contend it was error to give an instruction on assumption of risk in the absence of a pleading of such doctrine in a special defense. Such is not the law. Where the defense of plaintiff's contributory negligence is pleaded, as in the instant case, evidence of assumption of risk by the injured party and instructions relative thereto are proper. [Citation.]' Petition for a hearing by the Supreme Court was denied.
In the case of Mula v. Meyer, 1955, 132 Cal.App.2d 279, 282 P.2d 107, on which the respondent relies, the court was dealing with a specific situation in making the statement relied upon by respondent and it is not necessarily applicable to situations where violations of safety orders or statutes are not involved. In Ury v. Fredkin's Markets, Inc., 1938, 26 Cal.App.2d 501, 79 P.2d 749, 750, the court said: 'It is contended that this instruction is erroneous because the answer of the defendants contained no specific plea of assumption of risk.
'The point is not well taken for the reason that the defense of plaintiff's contributory negligence was pleaded, under which the evidence upon which the instruction is based was admissible. [Citations.]' Three further instructions dealing with the negligence of someone not a party to the action and the subject of imputation of negligence requested by the defendants were refused. It was error to deny the requests.
For the reasons stated the judgment must be and it is hereby reversed.
BRAY, P. J., and FRED B. WOOD, J., concur. --------------- * Opinion vacated 1 Cal.Rptr. 840, 348 P.2d 200.