202 P. 683 | Cal. Ct. App. | 1921
The plaintiffs recovered a judgment against the defendant in the sum of two thousand five hundred dollars for damages and the defendant has appealed, bringing up the judgment-roll and a bill of exceptions.
Morris Muller, as general contractors, were engaged in erecting a brick garage on the southeast corner of Broadway and Twenty-fourth Streets, in Oakland. George L. Masow, one of the plaintiffs, was working for the contractors as a carpenter, and at the time of the accident hereinafter mentioned was standing on some planking which rested on the rafters. The defendant, H. B. Henderson, as an independent contractor, was engaged in hoisting the rafters into place. The rafters, more properly called trusses, were made of wood and after each one had been constructed it was about sixty feet long from tip to tip, about twelve feet high, and, when the planks had been nailed together, the dimensions of a cross-section were eight by ten inches. The weight of one of these trusses was such that the defendant was using a gin pole thirty-seven feet six inches high, supported by four guy lines. While one of the trusses was being raised into place one of the guy lines tore loose, the gin pole toppled over, and the plaintiff Masow was injured, and for the injuries so received he brought this suit to recover damages.
[1] In their complaint the plaintiffs aver that the Globe Indemnity Company is a New York corporation doing business in California, and as such was the insurance carrier of Morris Muller; that after the accident the Globe Indemnity Company furnished Masow with hospital and medical expenses and has been and now is paying him workmen's compensation. The court found all of said allegations *512 to be true. The appellant in his brief attacks each of those findings as not being supported by the evidence. In reply to appellant's contention the respondent states that the evidence shows that since the accident the plaintiff has received compensation from the Globe Indemnity Company amounting to about eleven hundred dollars, exclusive of his doctor and hospital expenses, and that Dr. Shade treated Masow, acting upon the request of the Globe Indemnity Company. Such testimony, standing alone, is not sufficient to support the allegations regarding the Globe Indemnity Company and the judgment in favor of that company is not supported by the evidence.
[2] The appellant claims that the plaintiff Masow was guilty of contributory negligence. This claim rests upon the assertion that a short time before the accident Masow saw the gin pole swerving, and, from that fact, he should have assumed that the pole was not properly anchored. In another place in the testimony Masow testified: "I did not observe anything in connection with the erection of the boom until it came across the trusses. Up to that time I did not know that anything was wrong with the manner in which the boom was erected, or the manner in which the boom was being held." In view of this testimony it is patent that the most that can be said is that the evidence on the subject of contributory negligence was conflicting. However, this court is bound by the finding of the trial court in the face of conflicting testimony.
It is further claimed by the appellant that it was not shown by the plaintiffs that the injury to Masow was the result of the falling of the gin pole. In this behalf the defendant asserts that when the gin pole fell it did not strike the plank on which the plaintiff Masow was standing. There is some evidence supporting that reasoning. Be that as it may, another witness testified: "I believe plaintiff Masow was standing on the second purline . . . after Mr. Masow had fallen the gin pole was resting on the second purline." The situation, therefore, is another instance of conflicting testimony, and the conflict was for the trial court and not for this court.
The defendant makes the further claim that under the facts pleaded and proved he was not negligent. In this behalf he takes the position that it was his duty to exercise *513
ordinary care (Civ. Code, sec.
The judgment in favor of George L. Masow is affirmed, and the judgment in favor of the Globe Indemnity Company is reversed, with directions for the trial court to retry the issues contained in findings 1, 2, and 8, and thereafter to render such judgment for or against the Globe Indemnity Company as may be supported by the law and facts.
Nourse, J., and Langdon, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 8, 1921, and the following opinion then rendered thereon:
THE COURT. — The petition for a rehearing in this court is denied.
We deem it proper to say, however, that upon the retrial, if judgment is given in favor of the plaintiff Globe Indemnity Company, it must not exceed the amount already adjudged to plaintiff Masow, with interest, less any payments made thereon in the meantime, nor be in excess of the amount said company has paid, or has become obliged to pay, for the benefit of Masow, as insurance carrier for Morris Muller, and the judgment should also provide that any payment made by defendant to either of the plaintiffs shall be credited on both judgments.
Shaw, C. J., Lennon, J., Waste, J., Wilbur, J., Richards, J.,pro tem., Sloane, J., and Shurtleff, J., concurred. *515