167 P. 145 | Cal. | 1917
Defendants appeal from a judgment for damages for personal injuries and from an order denying their motion for a new trial.
Defendants were general contractors engaged in the erection of a building. Plaintiff was a subcontractor who had undertaken the construction of the stairs in the building. While he was employed about his task he was struck by a piece of brick falling from the floor above the temporary stairway upon which he was at work. The result was an injury which caused the loss of one of plaintiff's eyes. Judgment was given in his favor for one thousand two hundred dollars.
Before the findings were signed, but after the taking of testimony had closed and the litigants on both sides had rested, defendants moved to reopen the case for the taking of further testimony relative to the defense of the statute of limitations. The court denied the motion and such denial is specified by appellant as error. The complaint set forth the date of the alleged accident as the tenth day of January, 1912, while in the answer it was described as having happened during the month of December, 1911, and a defense was pleaded which was based upon the alleged bar of subdivision 3 of section
The evidence showed that certain men in the employ of defendants were removing rubbish, consisting partly of broken bricks, from a floor of the building. Plaintiff, who had constructed a rough stairway, was carrying a timber up to the floor where the men were at work, when a piece of brick was impelled into the space left for the stairway. The fragment struck him and inflicted the injury described in his complaint.
The court found that upon plaintiff's objection that he was in danger when other workmen were employed on the parts of the building above him, defendants promised to exercise care and provide a safe place for him to work. It is evident from his pleading that plaintiff did not rely solely upon the duty imposed by law upon defendants to provide him with a safe place in which to perform his labor, but he alleged, and the court found, that his employers had expressly assumed such obligation. Under the pleading and proof there was no sufficient support to the theory of defendants that plaintiff had assumed all of the risks ordinarily incident to his employment and that the accident was the result of one of such usual dangers. The proof of the removal of the rubbish in the manner and at the time shown was, under all the circumstances, sufficient to support the finding of negligence.
No other alleged errors require discussion.
The judgment and order are affirmed.
Henshaw, J., and Lorigan, J., concurred.
Hearing in Bank denied. *743