Thеse three actions were brought for personal injuries by Hocking, Pegnem and Campbell against Fong Wan and his two sons Richard R. Fong and Edward E. Fong. The cases were consolidated for trial and the jury returned a verdict in favor of еach of the plaintiffs upon which three judgments were entered. The State Compensation Insurance Fund was allowed to intervene, it being a compensation insurance carrier for the employer of the three plaintiffs, and it also had judgment against defendants to recover compensation paid. The defendants above named appeal from the judgments entered against them. A rehearing was granted in this case in order tо give further consideration to the effect of safety orders of the Industrial Accident Commission in determining the standard of care required in building a scaffolding.
The plaintiffs, Hocking, Pegnem and Campbell, were employed by Witt as plаsterers in remodeling the New Shanghai Cafe in Oakland, which property stood in the names of Richard and Edward Fong, but which was managed by Fong Wan, who was an alien incapable of holding real property in his own name. The plаintiffs were injured when they fell from a scaffolding placed in front of the New Shanghai Cafe building. One Lloyd Dawson, a contractor, had supervised the erection of the scaffolding and had made an oral agreement with Witt for the plastering job. Dawson was paid $10 a day plus a fixed percentage of the cost if he kept the cost of building within certain limits; he supervised the work, but all workmen, insurance, both social security and workmen’s compensаtion, and materials were paid for through Fong Wan’s office; Dawson had not posted a bond, but he secured *556 the building permit; and some testimony was given that Fong Wan was around the job frequently, and urged the workmen to rush the complеtion of the remodeling. Fong Wan testified that he was making the improvements for himself and for his sons. He put some of his own funds into the job. He managed the New Shanghai Cafe when it was in operation and his sons had no interest in the venture, оther than their ownership of the realty. The rentals from the real property were collected by him, and he would turn part over to his sons. At the time they purchased the real property, Fong Wan told the sons that they would have to take title because he was an alien who could not hold real property.
There is a sharp conflict in the testimony concerning how the scaffolding was constructed—what grade of lumber was used, how many nails supported the framework, and how the ribbons were placed beneath the ledger supporting the platform planks upon which the workmen stood. Two of the injured workmen testified that they noticed that the platform uрon which they were working was supported by only a single ledger. Over objection that the usual and standard practice in the community was immaterial where there were laws and statutes of the State of California covering the matter, testimony of a qualified expert was admitted concerning the “usual and standard of custom and practice of the building trade in” the vicinity in constructing scaffoldings. This testimony paralleled the requirements of the Genеral Construction Safety Orders of the Industrial Accident Commission then in force. It also paralleled the requirements of the Construction Saféty Orders effective approximately two months after the accident exceрt that it failed to mention the alternative method of construction providing for either two ledgers of a small size or one ledger of a large size. The testimony mentioned only the two ledger type construction. Defendаnt Dawson testified that the scaffolding in question conformed to the one ledger type construction. However, on this point his testimony is in conflict with the testimony of the men who built the scaffold, who testified the ledgers used were of thе size of the double ledger type construction.
Appellants, on the basis of Lloyd Dawson’s deposition, contend that there is insufficient evidence to support the implied finding of the jury that Dawson was an employee of the appellants, but they contend that this evidence shows that he was an independent contractor having complete control over the construction of the improvements, though paid *557 upon a per diem basis. After this deposition was taken, special counsel was employed for the witness and his testimony at the trial was directly contrary to that given in his deposition. The jury chose to accept the testimony given at the trial, and that ends the controversy.
Next appellants contend that the court committed reversible error in allowing the expert testimony relating to the custom and usage of building contractors in constructing scaffoldings in the fаce of the safety rules of the Industrial Accident Commission. The court takes judicial notice of the General Safety Orders of the Industrial Accident Commission. (Code Civ. Proc., see. 1875 (3);
Drillon
v.
Industrial Acc. Com.,
But the appellants contend that the Safety Orders of the Industrial Accident Cоmmission establish the only standard for the construction of scaffolding. They argue that evidence of custom or usage may not be admitted to vary the express terms of a statute. This position is not tenable. California Jurisprudenсe states the rule: “It does not follow that merely because one has complied with the terms of a statute or ordinance that he is thereby absolved from negligence. One may act in strict conformity with the terms of an enactment, and yet not exercise the amount of care which is required under the circumstances.” (19 Cal.Jur. 634;
Sickles
v.
Mt. Whitney Power & Elec. Co.,
Finally, it should be noted that we сan find no prejudice in the admission of the testimony if any error there was. To show prejudice in the admission of the testimony, the appellants assert that it varied from the Industrial Accident Commission Construction Safety Orders in stating that twо ledgers were required instead of one. This accident happened on July 2, 1940. At that date the following pertinent statutes and orders were in force: Labor Code 7156—‘‘Offenses. Any person employing or directing another to do or perform any labor in the construction, alteration, repairing, painting, or cleaning any house, building, or structure within this State is guilty of a misdemeanor who does any of the following:
“(a) Knowingly or negligently furnishing, etc. Knowingly or negligently furnishes or erects, or causes to be furnished or erected for the performance of such labor, unsafe or improper scaffolding. ...” Labor Code 7157—“Safety orders, making and enforcing. The commission may make and enforce safety orders in the manner prescribed by law, to supplement and carry into effect the purposes and provisions of this article.”
General Construction Safety Orders—‘ ‘ The platform of the scaffold shall be supported by putlogs madе of one by six (1x6) inch boards or heavier material, laid on edge.” (“Put-logs” are the ledgers herein referred to.)
Although on October 1, 1940, revised Construction Safety Orders went into effect which allowed the alternative methods of сonstruction for light building trades (c/. Order 1120) testified to by the expert and Dawson, depending on the size of the ledger board, at the date of accident the only criterion *559 laid down by the Industrial Accident Commission was that the ledgers be l"x6" boards at least, and the number was to be determined solely by the words “unsafe or improper” in section 7156 of the Labor Code. Therefore the testimony of the expert was not in conflict with the statutes of the State of Califоrnia, but explanatory of a statutory duty.
Next it is argued that the respondents were guilty of contributory negligence as a matter of law. Two of them testified that they looked at the scaffolding before going up and saw that it was constructed with but one ledger, the third testified that he paid no attention to it. If the only claimed defect in the construction of the scaffolding was the use of one ledger the argument of appellants would be more persuasive. But where other defects were claimed,, some of which were not patent, the question of contributory negligence was properly left with the jury. To put it another way, where there is evidence of negligenсe in the construction or maintenance of an instrumentality, which is not patent and cannot be observed by the use of ordinary care, the question of the negligence of the party using the instrumentality is one of fact.
Finally it is аrgued that the judgment should not stand against appellant Fong Wan since he was merely the agent of his two sons. It appears that the'sons were the record title owners of the premises, that Fong Wan, independent of the sons, conducted the cafe upon the premises and made the plans' to construct- a new building. Into this building Fong Wan put some of his own funds, and paid for the work and materials. Whether his status was that of a trustee, agent, or equitable owner cannot be determined from the record. In all his dealings with labor and material he did not represent himself as agent for his sons, but held himself out as at least a part owner in the premises. He was sued as such, and the burden was upon him to prove that his activities were limited to the relation of agent for his sons. Thus the question of that relation was one of fact for the jury, and the implied finding that he was an owner of some interest is supported by substantial evidence.
The judgments are affirmed.
Spence, J., concurred.
Appellants’ petition for a hearing by the Supreme Court was denied November 22, 1943.