Opinion
Rehearing Denied Aug. 28, 1930
Hearing Granted by Supreme Court Sept. 25, 1930.
Appeal from Superior Court, City and County of San Francisco; George H. Cabaniss, Judge.
Action by Lilian Montgomery against E.P. Nelson and another, as individuals and as copartners, doing business under the name of Nelson–Green, and the American Trust Company and another. From a judgment of nonsuit for the American Trust Company, plaintiff appeals.
Affirmed.
COUNSEL
James M. Wallace and Lovell & Lovell & Wallace, all of San Francisco, for appellant.
Ford & Johnson, of San Francisco, for respondent.
OPINION
STURTEVANT, J.
From an order granting a nonsuit against her and in favor of the American Trust Company, the plaintiff appealed. The American Trust Company occupied a banking house on the northwest corner of Grant avenue and O’Farrell streets in San Francisco. At the southeast corner of that building it had a case for advertising set in a recess in the outside of the wall. That case had a glass front suspended by hinges from the top. When the door was closed, the bottom was about four feet above the sidewalk. From the photograph, Exhibit 1, the top appears to be about eight feet above the sidewalk. Inside of the case was an automatic device operated by electricity. The device was not operating properly and needed repair. One of the agents of the trust company employed Nelson-Green to send an agent to make the necessary repairs. They sent James Lowman. When he arrived at the banking house he went inside, obtained the key, went out, unlocked the swinging door, raised it to a slanting position, and so placed the support rod as to hold the door in that position while he examined the electrical device. As to when or how he should do his work he was not given any directions by the defendant the American Trust Company. When the door was in that position the lowest part of it extended out over the sidewalk about two feet and the bottom was about five feet above the sidewalk. The photograph, Exhibit 1, shows the bottom could have been elevated seven feet or more. Having opened the case and braced the door, Lowman proceeded with his inspection, and was standing close to the center of the door and slightly to the left of the brace. Inside of the case were two red cloths, one of them he attached to the right-hand side and one he attached to the left-hand side of the opened door. While he was so engaged in his work, and while he was standing at the left of the brace, at about half past 1 in the afternoon, the plaintiff came south on Grant avenue, turned west up O’Farrell street and, as she did so, she struck her head on the lower end of the door with such force that she fell to the sidewalk. The impact on her head was a little below the line of her hair. The parties do not contend that Lowman was otherwise than an employee of an independent contractor. But, under the facts, the plaintiff claims that the defendant may not claim as a defense that Lowman’s act was that of an independent contractor, and she cites and relies on Du Val v. Boos Bros., 45 Cal.App. 377, 187 P. 767. The defendant replies that there was no conflict in the evidence to the effect that when the door was closed the case did not extend over the sidewalk and that it was not in any manner an obstruction thereof. It further claims that it did not open the door and that it is not liable for the acts of an independent contractor. Stephens v. Ind. Acc. Com., 191 Cal. 261, 215 P. 1025. But, says the plaintiff, the rule contended for by her extends to obstructions above, as well as to excavations in, the sidewalk. Wise v. Maxwell Hardware Co., 94 Cal.App. 765, 271 P. 918. The defendant answers, it did not swing the door out and it did not see what Lowman did, and in the absence of evidence of acts done by it, and absence of evidence of knowledge by it of acts done by the independent contractor, it is not liable. In this connection it asserts that when the obstruction is only collateral to the contract of employment of an independent contractor and not a necessary consequence of it, the employer is not liable (Stockton Automobile Co. v. Confer, 154 Cal. 402, 97 P. 881) because there was no inherent danger in having the cabinet opened and of having the device repaired. (Schmidlin v. Alta Planing Mill Co., 170 Cal. 589, 150 P. 983). Why Lowman raised the door only five feet, instead of eight, above the heads of pedestrians, does not appear. There is no evidence that his failure so to do was a necessary result in making the repairs. That being so, defendant was not liable. It is unnecessary to cite more than one decision. Hoff v. Shockley, 122 Iowa, 720, 98 N.W. 573, 64 L.R.A. 538, 101 Am.St.Rep. 289. In that case the court made an extended examination of the authorities and shows that the rule is as stated by us.
It is claimed that the cabinet as maintained was a nuisance. The record does not show it was an "unlawful" structure. Therefore it was not a nuisance. Civ.Code, § 3479.
Some contention is made that the doctrine of res ipsa loquitur applies. In Judson v. Giant Powder Co., 107 Cal. 549, at page 556, 40 P. 1020, 1021, 29 L.R.A. 718, 48 Am.St.Rep. 146 the court quoted with approval as follows: "When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from the want of care." When the motion for a nonsuit was made, it appeared that Lowman, the agent of an independent contractor, had the "management" of the cabinet, and it affirmatively appeared that the defendant was absent and had no knowledge of what Lowman was doing. These facts did not bring the case within the rule. As there was nothing showing the defendant was doing, or was causing to be done, an act inherently dangerous, there was no evidence to bring the instant case within the rule as stated in Du Val v. Boos Bros., supra.
As the plaintiff called Lowman as a witness under Code of Civil Procedure, § 2055, she claims his testimony should not be considered in reviewing the motion for a nonsuit. We think the claim is too broad. Figari v. Olcese, 184 Cal. 775, 782, 195 P. 425, 15 A.L.R. 192. We find no error in the record.
The order appealed from is affirmed.
I concur: NOURSE, P.J.