*1 31, 1959.] Bank. Dec. 20249. In F. No. [S. DEVEL- Respondent, GROOM FLOREZ,
PETER G. et (a Corporation) al., INC. COMPANY, OPMENT Appellants.
M8
3é9 *4 Mc- McDonough Richard B. Burdick and Carroll, & Davis, Donough Appellants. for R. Alfred Harbaugh,
Naphan Lewis F. Sherman & Naphan Respondent. for employee Florez, Peter
PETERS, J.Plaintiff, G. job painting on a on which defendant subcontractor general Development Company contractor, Groom was brought against general this action contractor and its damages injuries plaintiff owner on to recover sustained job. plaintiff returned verdict favor of against $32,500. both defendants in the amount of De- judgment notwithstanding for a fendants’ motion verdict appeal and for a trial were new denied. Defendants judgment on entered the verdict. January are The facts as follows: the Groom Development Company general for the contractor Plaintiff, construction of a in Oakland. a sheet subdivision employee painting rock taper, finisher January plaintiff subcontractor, 7, 1957, Paul On Johnson. assigned his foreman to work on the interior of one of day, plaintiff As far knew, the houses under construction. as he on only working was the mechaniс on that house. Palmer, employed Development One a laborer Groom up Company, cleaning did some work and around the house plaintiff during morning January 7th, but not see did him work, in the In the around course of his afternoon. plaintiff required paste requiring to use water as one ingredients. of its He paste mixed a batch of this at his employer’s shop ques- before on he started work the house in January paste p. tion 7th, but m. ran out of at about 3 necessary up batсh, water to mix another but he needed It for eating he had ob- day, lunch, That while purpose. on the outside the house on which faucet served a water *5 working. far knew, he was So far as he and so the as evi- vicinity. only shows, this the water available in the dence empty 5-gallon cans, took two walked outside the Plaintiff house and over to get where the faucet was located to some plumbing dug subcontractor water. had ditch which adjoining from separated thе faucet the area. This ditch garage wall of the house. It was paralleled about 5 feet deep and about feet across. The dirt from excavated up away thrown on the side of the had been ditch from ditch forming point an garage, embankment. At .the directly leading plaintiff faucet located and it to by long a 4 6-ineh about 4 or feet extending saw 4% He that one across ditch. noticed end of the had garage on the foundation been and the other depression in a in the embankment. Pie one proceeded ground, other, onto cans on the held to step feet, onto the with both one ahead of the other. preparatory filling he reached down to turn on the As water give way the can he felt behind him and he fell fell into ditch. The with him. He suffered severe injuries. judgment Defendants not attack being do excessive. hospital by Plaintiff was taken to the Palmer, employee Development Company. way оf Groom On the hospital plaintiff by told that he Palmer man to had been directed his fore- place particular plank ditch, used across the which although done, he knew that it was unsafe. secretary-treasurer Groom, Merlin company, defendant company general testified that his was the contractor on the job carpentry and also did the work; that the Groom De- velopment Company hired up laborers work it to clean job and, around the under thе direction of the foreman of Development Company, to Groom assist the subcontractors; January 7, 1957, that on by 4 and Leon Palmer employed was so Development Company; Groom the foreman for Development Company Groom was one Phifer; Harold the witness knew that around a job construction it was procedure by by standard to use 2 10-inch planks 12-inch upon, planks to walk and that such sized were safer than planks. 6-inch It be planks should noted that thе wider only give upon would a wider area which to walk, but, obviously, upon would furnish better base which to rest. employee that he Palmer testified Leon of Groom Company; only that he took Development orders from Harold Phifer, paid by the foreman of that company; that he was the company; that he took no from subcontractors, orders al- though help orders Phifer he would sometimes Friday subcontractors. Palmer also testified on the be- (the hapрened fore the Monday) accident accident next been painters putting he had directed Phifer to aid up staging some outside the house where the accident sub- sequently painters occurred. This was to be used so that the paint could the exterior of the It house. consisted *6 high by of two 6-foot Development saw horses owned Groom Company. upon In order to have a foundation which to "rest legs of one of horses, placed by the saw Palmer the 4 6- plank ditch, inch across the with one end on the foundation garage and other end on the embankment created by the construction of keep plank ditch. order to level he out of depression cradled the dirt a in which that plank placed. end of the He stated that he knew that the by plank 6-ineh was not by safe and that a 2 10-inch or a by plank customarily 12-inch for used such purposes, but he was afraid to use the wider plank, although planks such were аvailable, because he by had been told the foreman of Development Company Groom that he would be if fired larger plank used the by for purpose. such a He was directed particular Phifer plank to use the employed by him. After staging up, had been set Palmer left the immediate area to do some further nothing work and had further to do with the painters, and, in particular, nothing had to do with the re- staging. moval of the painters He saw the removing stag- ing Friday night, but he did nоt know they whether also plank. removed the Monday, On immediately after the acci- dent on occurred, the orders of his foreman plaintiff to take hospital, he returned to the scene of the accident, and very plank saw the same he had across the ditch on Friday, in the ditch. The bank consisting of what he plank where the rested, had dirt,” called “loose was caved in. Werner Feldhaus, Jr., called as a witness for defendants, testified that he employed, as was plaintiff, by the sub- contractor Paul He Johnson. Friday, testified that on January 4, 1957, he necessary found it to erect staging some so that the exterior of the He question house painted. could be positive that he and the foreman put Johnson up plank across the ditch. Palmer nothing had with do this task. ques- by tion was a 2 10-inch or 2 12-ineh plank, not a 4 6- plank. inch (Palmer) dug The laborer out the dirt was depression bank to make into placed, which the nothing
but Palmer selecting to do with placing it across the ditch. After the witness and the other painter painting finished Friday the exterior of the house on they afternoon, removed the staging, including plank. When the witness Friday left the area on afternoon there was no across the ditch. The put witness had no idea who across Monday. the ditch on evidence, plus this On the medical evidence, brought in a $32,500. verdict of major The two contentions of that, are as a implied matter of law, finding negligence part on their totally is unsupported, that, aas law, matter of the evi- dence shows that contributively negligent. There is no merit to either contention. issues, normally, present only Both of these ques- factual frequently In the cited ease tions. v. Southern Crawford 183], Cal.2d it is stated: “In Pacific reviewing appeal the evidence on such an all conflicts must be respondent, in favor of the legitimate resolved and all indulged uphold reasonable inferences possiblе. the verdict if elementary, It is an but principle often overlooked being that when a is law, verdict attacked as unsupported, appellate power begins court and ends with a de- any as to whether there termination contradicted is substantial evidence, or uneontradieted, support which will the con- *7 by jury. clusion reached When the two or more inferences reasonably be from facts, can deduced the reviewing the court power is without to substitute its deductions for those of the [Citing trial court. To establish the defense of con- eases.] tributory negligence against the verdict of a jury, appellate must be such that'the say evidence court can is no substantial conflict facts, there on the and that from the men facts reasonable can draw but inference, one which in- points unerringly negligence ference to the plaintiff proximately contributing injury. to his own [Citing cases].” (See Fennessey v. Gas & 141, Elec. 20 Cаl.2d Pacific Mosley 51]; 145 P.2d v. Arden Farms Co., [124 26 Cal.2d 213, 372, 219 158 872].) P.2d A.L.R [157 Respondent employee as an of a subcontractor admittedly an appellants, general invitee of contractor. (See p. Cal.Jur.2d, collected 35 663, 147.) Pauly cases § 649, 44 King, 487], v. Cal.2d 653 P.2d this court [284 stated
355 relationship as follows: “An duty in such involved occupies relationship of an employee a subcontractor of ‘The [Citing to the main contractor. invitee eases.] property, principle applicable general is that the owner safety concerned, of an invitee is is not insurer insofar as keep premises in a reason reasonable care to his but must use give warning of latent or concealed ably safe condition resulting peril. injury an invitee He is not liable for danger have been observed which was obvious should ’ (Brown in of reasonable care. v. San Francisco the exercise Inc., Cal.App.2d 484, 19].)” 486 Ball P.2d Club, [222 most of the evidence viewed negligence, On issue strongly in shows that Palmer em favor by by general contractor, ployed appellants, is, perform up job other to clean around the and to tasks. Part upon general job was, of his contractor, orders from the foreman of the specific jobs. Thus,
to assist the subcontractor on assisting subcontractor, employee was the Palmer paid general him, contractor who controlled what he did by he and how did it. Palmer instructed foreman of painters general stag the ing, contractor assist the to erect the by particular that foreman to and was instructed use the though plank involved, planks even 6-inch other wider though planks available, for such customarily were and even wider are purposes. used man of the Palmer had been told the fore general contractor that he would be if fired planks purposes. used the wider plank for such Palmer spot across the at a one ditch end of leading directly almost under the water faucet. general knew, Palmer and therefore the knew, contractor that such a used to walk unsafe and was not commonly purpose. knew, used for that Palmer or should through known, and Palmer the knew, have position plank if left which it was located would implied any invitation to constitute the workmen on the job they if (Johnston to use it to walk on needed water. v. Properties, Inc., De La Guerra Cal.2d 399 [170 Grocery v. 5]; Stores, Inc., P.2d App.2d 833, Danisan Cаrdinal 155 Cal. ; Ewing, P.2d Gastine 65 Cal. [318 681] App.2d 131, 266].) Palmer the other up by plumber end of the on the dirt thrown when dug scooping ditch, he that after first out some of the dirt so knew, would be level. Palmer and therefore appellants knew, bank was loose dirt. *8 Appellants place much reliance on the evidence that plank put the holding up down to assist in staging. They rely heavily testimony also plank on Feldhaus’ that the Friday jury obviously was removed afternoon. The disbelieved testimony If Feldhaus. thаt believed, had been it was Feld haus, employee a fellow of the subcontractor for whom re spondent put worked and not Palmer who selected and down plank. story by If the told Feldhaus been had believed plank Friday to the effect that he removed the afternoon, then appellants would not be liable because then there was no evi appellants plank. dence to connect with the But Feldhaus’ testimony many respects was not testimony believed. his directly by testimony contradicted of Palmer. Palmer placed plank that testified he across the ditch on the appellants’ foreman, orders of and that that foreman selected plank. Feldhaus that testified he selected and plank across the Palmer plank ditch. that testified was a by plank. by 6-inch Feldhaus that testified it was a 2 plank. jury or 2 12-inch The believed Palmer as to jury The these matters. jury’s disbelieved Feldhaus. It was the pass credibility function tо on the of the witnesses. Although there nois direct evidence to contradict Feld testimony plank haus’ that he Friday removed the on after noon, is put there the evidence of Palmer that plank Friday on across the ditch and that the same inwas Monday immediately on ditch after the accident. There is testimony across the ditch Monday on a description type that Friday. testimony Palmer had Thus, there of Feld point haus on this is the circumstantial evi contradictеd dence. even if uncontradicted, But in view of the fact jury falsely to other had found that Feldhaus testified facts, falsely this fact.1 it could find that he as to had testified appar jury evidence, could, and Thus, under Friday, on placed the there Palmer ently find that did, staging was it, on erected it place left Friday, but on removed jury Monday. could the accident until remained have or should knew Palmer did, that apparently find, and known) have knew or should therefore (and known requires 3, Civil Prоcedure the Code subdivision 1Seetion jury witness false "That proper instructed: must be eases the that in one testimony in others.” The part is distrusted to be his case. instant instructed was so *9 857 place implied if left in that the would constitute an it to walk on in invitation to use order to reach the faucet. a circumstances, under these were under appellants, duty purpose, after to remove the it had served its or dangers involving using They of the it. to warn invitees dangerous the in Moreover, condition. had created the only required protect his law, is to invitees not vitor, under dangers by him, or of which he has actual knowl created dangers the use of reasonable from those which edge, but knowledge. (Austin v. Riverside care he should have had 69].) Co., 225, 233 P.2d Portland Cement 44 Cal.2d [282 oppor an if there was actual notice is no defense And lack of revealed tunity inspection would have inspect, to and such Incorporated, (Blumberg T. dangerous v. M. & situatiоn. Sarlin, 11 Cal.2d ; Mondine v. 226, 34 229 P.2d Cal.2d 1] [209 Electric Gas & 903]; Dobbie v. 593, P.2d 597 [81 Pacific In view of 630].) Cal.App. P. 781, 95 790 Co., [273 unsafe, that knew that the fact that Palmer it place consti if left known that he knew or should have upon it to to walk workmen implied an tuted get invitation he knew the fact that in view of faucet, and to the water was in Friday afternoon, and been removed seen whether morning could have Monday general area duty of the removed, in view or not the had been appellants invitees, thе general towards of the contractor re not been plank had that the chargeable with notice were ample evi is there circumstances these moved. Under neg were appellants findings implied dence to sustain ligent of the cause proximate a negligence was that such accident. evi contention of is The next eontribu respondent was law, a shows that dence, as matter fact and tively is one negligent. question, normally, This it in this question was а of fact case. implied already pointed constituted out, As job to it workmen on the use to reach the invitation to the that, where an invi water It is well settled faucet. a express implied, to and includes defective tation, portion extends may may assume premises, invitee danger. without extends use the to which invitation area 394, Properties, Inc., 28 (Johnston Cal.2d v. De La Guerra Cal.App. America, 130 5]; 402 Woodard v. Bank P.2d [170 Cal.App.2d Ewing, 65 1018]; v. 849, 2d 853 P.2d Gastine [279 Co., 65 Cal. Red River Lbr. 266]; Locke v. 131, 142 P.2d [150 §58 Joffe, 28 Cal.2d
App.2d 322, 506]; v. 326 P.2d Harris [150 Hodge Weinstock, Lubin & 109 ; 424 P.2d v. [170 454] while 80].) invitee, An Cal.App. 393, P. 397 [293 in premises using portion to which properly be, he held to required to nor is extends, vitation is not Cal.App. 114, Fetters, inspector. (Siegman of, duties v. Inc., 68 Constructors, Cal. 49]; P. Miller [210 Pacific is Certainly “an invitee 57].) App.2d 529, 545 P.2d [157 (Billeter v. Rhodes traps.” required for hidden to look 93].) Cal.App.2d 137, P.2d Ltd., Jamieson, & [231 doing job, It law that workman is also the the same required exercise job do, he was is not hired other invitees. may required of quantum be of сare Cement Portland Riverside in Austin v. As was said “ : . page 225, at Co., 44 Cal.2d 69] *10 amount danger the position possible of person work in a must safety may for his own to exercise which bound of care he is giving attention necessity his of of the be less reason well (Barboza v. ease. be the work than would otherwise to his ” ...’ 36, P. Co., 767] 40 162 Cal. [120 Portland Cement Pacific 402, Cal.App.2d Emery 43 (See T. & T. v. Pacific Constructors, Inc., 68 Miller 1079]; v. 409 P.2d [110 Pacific 137 Crump, v. Mecham 57]; Cal.App.2d 529, 545 P.2d [157 568].) Cal.App. 200, 204 P.2d [30 that case, In the instant assume their plank using in a narrow negligence, any, if that was too was short, these defects were clear or too and contend that urged by respondent. It is should have been seen obvious, and upon by respondent support the very that the facts relied respondent was negligence that of also demonstrate inference argument proceeds on the eontributively negligent. This required quantum of care of the invitor theory the that only if the law. Even the That is not are idеntical. invitee furnishing plank was too in a that negligence involved was re both, question as to whether or the narrow, or too short using it reasonably in acted spondent as workman-invitee already jury. for The cases question of fact was a forgotten that It not be support principle. must this cited in the course employee required him, respondent’s duties knew, the far as water, so employment, and, to use of his avail water was only place question was the faucet furnished only means dangerous plank was the The able. to balance the The was entitled reach that faucet. against if be as- necessity danger, even it respondent’s 359 apparent it that was one. This was factual issue. sumed Douglass, Cal.App.2d (Douglass 614 P.2d [279 Associates, ; Foster P. 556, 46 A.L.R.2d v. A. Jacobs & 1370] ; Berns, Cal.App.2d 746, P.2d Mariotti v. 971] [193 72].) Cal.App.2d 666, only negligence that in if it be assumed Thus, even furnishing a involved, volved, or that have been could both, such plank narrow, that was too short or too and that readily jury properly found for apparent, condition that respondent. shows another defect But the evidence apparent. that bank he used as was not so Palmer knew composed He of loose dirt. support one place depression which to scooped out of dirt a into this Obviously plank. area was caved after the accident. That appel through him knew, known, and Palmer or should have consistency known, that sоil or should have lants knew jury could, placed upon pressure were it. not safe if proximate may properly did, assume find and we placing negligence in one end was the cause of the accident pres support if in soil that would of the plank had served fact that the placed on it. The sure were indicate, painters does not staging support used placed in plank must have been law, as a matter pictures into evidence introduced solid soil. From staging, it is placing describing the evidence erected so that staging have been apparent that the could on the end major from the pressure was not until garage. It on the solid foundation exerted by stepping other end respondent on the way. gave pressure that end that the loose soil properly argued be should have It cannot have bank, and thus should *11 examined the discovered When he saw the faucet and the nature of the soil. inseсure right had been plank he a to assume had right a walkway get to the faucet. He had to a to there as there had had used that whoever assume certainly right a doing had to assume in so. He care reasonable deliberately not placing the there had the one plank on an by placing of the insecure trap one end created a chargeable seeing respondent with While foundation. duty a to examine not under obvious, he was making reаsonable use of what was a minute care. with purpose appar- for using it for the which it plank, in the ently and right a to assume that intended, reasonably condition. While he a safe it was duty safety for his own a to use reasonable care and under injury him make use of his faculties to avoid to reasonable duty under no to be on the constant lookout self, he was might be danger. Even if the defect were one that person looking for he was defect, visible to a whо was such failing contributively negligent a matter of law in not reasonable use of Whether made see and avoid defect. nature whether he should have observed the his faculties and (See questions of law. Peters of fact and not of the soil were City County Francisco, 419, 424 41 Cal.2d & San [260 of County Francisco, City 55]; & San P.2d Gentekos v. of 943].) Cal.App.2d 691, 702 P.2d [329 appellants complain The of the refusal of the give proffered trial assumption court to instruction on of giving risk, complain and of an instruction that the wаs not involved the case. doctrine The record shows that plead assumption appellants did not of risk as a defense pretrial at their answer. It was raised as issue con pretrial ference During order did not include that issue. trial moved to amend their answer to set up assumption an being of risk as affirmative defense. The trial give late, court the motion as too and refused to denied proffered rulings instruction. The all correct. The were of motion wеll denial to amend was within the discretion proffered ary powers trial court. The instruction did not apply any issue The evidence disclosed evidence. possible contributory negligence but not raised the issue of assumption of risk. The two doctrines are not identical. contributory negligence, gave proper court instructions on properly assumption of risk. ruled out the of defense Meyer, in Mula v. Cal.App.2d As was said recognizes “The law : that the defenses 107] assumption contributory negligence of sepa risk and are properly the trial rate and distinct. Here court ruled out assumption permitted but risk, doctrine contributory negligence. the defense consider This is in applicable accord with law to the relation invitor-invitee ship.” contributory negligence Aside from the issue of there was respondent voluntarily accepted
no evidence a risk with knowledge appreciation of that risk. Thus instruc- properly tion was refused. *12 The They other claimed errors are a minor nature. could possibly prejudicial. have been judgment is affirmed. J., Schauer,
Gibson, J., Traynor, J., White, J., C. concurred. judgment
McCOMB, J. reverse I dissent. I would opinion pre- the reasons Mr. Hanson stated Justice pared by Appeal him for the Court Florez v. District Development (Cal.App.) 340 Groom P.2d 666. January petition
Appellants’ rehearing for a was denied opinion Spence, J., McComb, J., 1960. were granted. petition should be F. 20294. No. In Bank. 31, 1959.] Dec. [S.
MARY et al., CHIYEKO INOUYE Respond- Plaintiffs and ents, v. PACIFIC AND GAS ELECTRIC COMPANY (a Corporation), Appellant; TRUCK EX- INSURANCE CHANGE, Respondent. Intervener