*1 A. June 10, No. 23538. Bank. [L. 1955.] al., PAULY, OWEN et Appellant, ROBERT CARL KING Respondents. *3 Dockeray Rose,
Victor C. Alfred M. Klein and P. for Robert Appellant. Ely Loomis, &
Betts, Williams, Tripp James & Calla A. way Callaway and Hulen C. Respondents.
EDMONDS, While working employee J. as an of a injuries subcontractor, Pauly fall Robert Carl sustained building. "general from a an He sued the contractor and negligence. Upon subcontractor, charging appeal other his judgment defendants, from a in favor of chal both lenges him and instructions which define the duties owed to rulings upon the admission of evidence. dispute premises no
There is as to the condition injury the manner in which the occurred.
Travelodge Company, general contractor, con- as owner and building. On the story motel structed the framework two *4 story structure, extended several south end of the the lower balcony. beyond upper to form a deck or feet one so as sheathing, surfaced 'deck, The of be made wooden roofing material. Sheet Metal Logan, proprietor O. H. of the General flashing. For supply install Company, subcontracted and
653 purpose, strips gauge this 12 steel, narrow sheet about wide, trough inches are formed somewhat like and nailed edge. edges roofing the roof’s then are bonded to the Ordinarily, flashing material. that it protrudes is installed so beyond three-quarters about one-half or inch the com- pleted wall, give protection side in order to from the weather. In accordance with plans specifications and furnished Logan contractor, flashing attached the so that it extended beyond edge some inches of the deck. It so 5% placed wall, in order to cover a brick veneer subsequently erected, upward which would extend close to bottom flashing and outward to about one-half from the inch edge. morning accident, Pauly
On the of the another em- and ployee roofing of the truck parked subcontractor their on building began carrying side south ma- and path terials the deck. Their took them below over- hanging flashing footing next to and had which been placed in for making readiness the veneer wall. After four they trips, their started work on the roof. unrolled preparation paper affixing During some it to the deck. operation stepped he flashing, backward onto the collapsed him. beneath complaint, Pauly charged his Logan Travelodge negligent fastening
were adequate without support failing to warn him of the danger of such con- struction. defendants denied generally allegations and, complaint of the as affirmative defenses, pleaded con- tributory negligence and assumption of jury re- risk. The verdict for the turned a defendants.
An employee a subcontractor occupies the relation ship an invitee to main contractor. (Dingman F. v. A. Co., 622, 15 Cal.2d 624 Mattock 26]; P.2d Hill v. Eaton [104 Smith, Cal.App.2d 11, & P.2d “The applicable principle is that the owner property, is concerned, insofar as an invitee is not an safety insurer of keep use reasonable premises must care to but his in a reason ably give safe condition and warning of latent or concealed perils. He liable for injury is not resulting invitee from a which was obvious or should have been ob (Brown in the exercise of served reasonable care.” v. San Club, Inc., Ball Francisco 484, P.2d Blodgett 19]; Dyas v. B. 4 Co., H. 511, Cal.2d *5 Bridges, Cal.App.2d 341, 345 801]; Jones v. the finding that supports implied Ample evidence the care. due order of here followed is consistent with construction accepted witness testified that it the standard One is building structural practice industry to construct the in ma roof, flashing to install and framework and and it erecting protect in terials, veneer order to before a wall witness, a during roofing operations. Another damage from this engineer qualified expert, stated that structural who as city necessary existing ordi order is under construction requirements for compliance allow with the build nances to contrary. ing inspection. testimony There is no evidence is in substantial conflict to whether The as required sup flashing reasonable care the extended to be ported during roofing According Pauly, cus operations. required usage supported; and it no man tom that different years.” safety A ner of construction followed “in had been engineer sup flashing also testified that the been should have ported type support and a used. But described sometimes qualified testimony stating pur he his that the primary pose flashing of support from avoid distortion of building operations, other and admitted that had never he arrangement seen such an used where a veneer wall was be erected. testimony quite from of these witnesses was different expert An given behalf defendants. sheet on
that requiring usage there is no custom that metal work stated flashing. depends upon He said “it all support temporary having he could not recall job,” and told seen A supported. en- flashing which was construction extended requiring practice is no there standard gineer testified flashing, because “has support for it no structural temporary no intention ever there is that it would bear value; therefore According witness, to this any weight.” “set structural complied practice used with standard “for up” here to, impliedly was free type of construction.” against Pauly. in evidence did, this conflict resolve evidence, it contra- shows without Pauly evaluates As roof,” customarily works “all over roofer a diction that part it. For reason, he flashing being considered have warned him should defendants argues, reply The defendants unsupported. flashing was where a roofer concerning place would work evidence evi- any there is substantial event, said, conflict. arising finding support dence which would experienced unsupported would be obvious roofer. conclusively established a custom
Even if the evidence flashing, usage upon parts of roofers to stand all unless to do so is rely upon would not be entitled to *6 Angeles, (Cf. City Los consonant with due care. Polk v. of Ysuchiyama, 26 519, Cal.2d v. ; 529 P.2d Mehollin 931] 53, 855].) observe Cal.2d P.2d “Failure to custom may negligence, evidence the standard be of but not fixed always custom. The due care. standard presence or of alter absence custom does not that standard. may Custom in assist the of what constitutes determination due care. What others some of should do is evidence what ’' (Owen done, but custom is never for due care. a substitute Mfg. Rheem Co., 42, customarily practice The evidence the followed as to by a roofer Although Pauly is not without and conflict. others stated that customary it was for the roofer to stand upon parts all roof, of the the including flashing, other wit nesses testified that practice there is no custom or standard of as to where he stand, should footing but he should choose a structurally which is According witnesses, sound. to these depends upon choice circumstances the From case. this testimony, jury the concluding was warranted in that no required custom or usage Pauly upon flashing to stand and the it would not be consistent with due care him to do if so danger arising the from being support its without should be to known him.
There is from abundant evidence which the reasonably might danger arising conclude that the from the flashing unsupported apparent experienced would be dispute It roofer. is without that the flashing here installed ‘1 ’’ “ ’’ equipped a crimp gravel or stop, described as ” rising one-eighth an “inverted ‘V’ from three-eighths flashing, an inch above the surface of the which the marked supporting edge of roof below Pauly, himself, it. testi appearance fied that from gravel he stop knew the edge location the roof. There was also evidence that flashing the nails which was attached to the roof were only from and gravel visible above extended from stop expert facts, testified, From these an experienced inward. would roofer assume the extended was without overhanging flash- support. Furthermore, photographs his co- jury, and ing were shown both ground. from worker was “obvious” testified through point trips Pauly made several before the accident flashing, unsupported might he have which observed attention although he stated he did not do so because his con- reasonably might have elsewhere, was directed In these prudent person have seen should it. cluded that circumstances, support there is substantial evidence un- might arise from implied finding that the which require warning supported flashing obvious was so as to no Pauly from the defendants. following in
Pauly complains, however, that jurors: removed factual determination from the struction nothing inherently doing dangerous “There is surface, deck in- work on a flat such as that which was here upon either of volved, and therefore it was encumbent plaintiff concerning any apparent the defendants advise which, being plainly observable, conditions would condition or inquiry make con- advise a reasonable and man to cerning any probable dangers be involved ex- whether not the their or conditions use. isting reason- plainly herein were were not observable to a *7 person one of for the de- prudent able and fact to light from the evidence in in the termine this case the of (Italics added.) Court’s instructions.” By phrase, according Pauly, to the the italicized in effect jurors namely told the “condition the the roof, were that unsupported flashing, plainly ap metal to observable pellant.” Relying upon Brothers, in v. Volpa dictum Clarke 377], argues he that “where respect- a fact . . an instruction assumes the existence of . with evidence, a in . . in which there is conflict . error by charges . is not cured other respect . . which submit question (P. 179.) whether fact exists.” such does not state that the condition challenged instruction specifies observable, but the defendants’ duties plainly 1‘any which, or apparent conditions, condition regard with observable, advise a reasonable man being plainly would concerning probable dangers.” most, At it is inquiry make standing alone, disputed phrase ambiguous. Although, having meaning by contended for construed as be complete in the context of the in Pauly, it be so read cannot fact, tendered as an issue of and others struction unsupported flashing presented apparent whether an danger. Where an instruction claimed to assume the presents only ambiguity existence of fact an regard, a that uncertainty may be cured other instructions or another part of (Cf. Levy the same one. Brothers, v. 18 Cal. Hatfield 798, 815 2d P.2d 841]; Comp. Fund Lamb, State Ins. Cal.App. 236, P. Any uncertainty here was clarified the sentence immediately following the challenged one, which told the jurors question that the “whether or not the conditions exist ing herein were not plainly or were observable to a reasonable prudent person is one of jury.” fact for the Also, other jurors instructions were fully, completely and properly instructed as to the defendants’ duties with regard to latent or obvious defects, and that the nature of the defect here involved was a of fact for their determination.* following given request *All of Pauly: instructions were at the “Although dangerous may readily a condition be observable from point view, may readily point one of not be observable from another flashing readily view. The test is not whether a would be observ- able from readily the street but whether it would be observable at ordinarily prudent person time when an would make the observa- ordinarily person If tion. an under the same or similar Pauly as Mr. circumstances would not have made observation overhanging street, from the and if he would not Pauly have made an observation until time when Mr. did observe it, dangerous readily then the test is whether or not the condition was ordinary finally observable when Mr. in the exercise of care made the observation. ordinarily plainly necessarily “Defects which are visible do not preclude party injured thereby recovery negligence who was reasonably prudent person if a under the same or similar circumstances would not have observed the defect. you “I if upon instruct there was a latent condition the roof plaintiff aware, of which the was not and which condition was dangerous, duty Travelodge Corporation was the of the defendant plaintiff any danger they to warn the they, of which knew or which prudent people, ought as to know. you “I plaintiff further instruct to warn the could delegated danger given anyone and a notice of the other than plaintiff himself, plaintiff. is not in law notice to the “I you charged knowledge instruct that a workman is not may or damages resulting latent concealed defect and he recover knowledge from such latent provided defect of which he has no contractor who created or maintained the latent *8 knew, by concealed defect or the exercise of reasonable care should know, remedy of such defect and fail to or warn the workman of that danger. you alleged “I instruct that even if an defect or in the patent observable, nevertheless, you construction was must deter- ordinary part mine whether or not it was a want of on care the of plaintiff the to have looked at the and to have made an inspection stepping plaintiff of it before on it. If acted like an They given danger- were determining any for test whether They ous condition was or were also told obvious concealed. it duty that would “from be their determine all to dangerous evidence in this if condition case” there was a they Furthermore, patent. whether it was or were latent against any as to assuming, cautioned from statement possible facts, that the court of the existence of a state of opinion proved existence. the evidence their
A colloquy, occurring jurors when returned from their request deliberations additional instructions, plainly to indi- they cates that challenged did not understand the instruction state, law, dangerous as a matter that the condition was patent. they Clearly, considered that to be one of fact for their determination because one of them asked to have repeated concerning potential danger instruction “a latent job on the and the of the contractor toward a ordinary prudent person eireumstanees, under the same or-similar required require exceptional is care, him all that is since the law does not foresight. skill or you dangerous “1 a defect instruct a failure to observe or condition, was, by if there have been seen close scrutiny necessarily contributory negligence does not constitute on the part who, previous knowledge existence, of one without of its in- is jured thereby. person who The test is whether failed observe dangerous exercising ordinary a defect or condition was care as such you in has been defined to these instructions. patent whether, or is “The test of whether defect latent ordinarily person circumstances, or under the same similar readily apparent eye. readily apparent If it to the is not to the defect, eye, patent or is not a obvious but is a latent defect. your duty from all of “It will be to determine the evidence this dangerous condition or ease whether or not there was created main- Corporation by Travelodge and to tained defendant herein further dangerous clearly determine whether condition visible or ob- plaintiff or he had actual or vious to the whether constructive knowledge dangerous whether, condition or the existence fact, dangerous actually condition was a latent or concealed defect. injury Ordinarily, a work- a contractor is not liable sustained clearly him or obvious or when man as a result of defects visible knowledge or of the existence of the defects. he has actual constructive hand, charged knowledge of a On the workman is not the other resulting may damages latent or concealed defect and he recover knowledge provided no such latent defect of which he had or exercise contractor created or maintained the same remedy or warn know of such defect and fail reasonable care should danger. the workman of that abstractly, cannot be made but must be “Statements of law often you Throughout my possible of fact. instructions related will situations possibility of a certain state of in mind that whenever bear stating applicable law, purpose I do facts is assumed for the proved imply opinion an the evidence has not mean to facts, suggest opinion un- favorable nor to existence of those any party.” either or favorable to *9 ’’ is as thereupon. The record or tradesman subcontractor follows: 1‘ patent or a defect is : The test of whether Coubt person under whether, ordinarily prudent latent to readily apparent it is circumstances, or similar the same not a eye, to the readily apparent eye. If it is not defect, a latent defect. patent or but is obvious it. : I believe that is “Jubob Jameson made the the one that : That is it? You were “The Court inquiry concerning particular that fact? another one but thought : I was there “Jubob Jameson guess I all. that is ‘1 from all your to determine : It will be The Coubt dangerous there was a case whether or not evidence this Travelodge by defendant created or maintained condition whether determine Corporation herein and to further to the clearly or obvious dangerous condition was visible knowledge or constructive plaintiff or whether he had actual whether, in dangerous of the condition the existence actually a latent or con dangerous fact, the condition cealed defect. ...” Pauly complains portion of the instruction also ‘‘ inherently dangerous nothing
which here is states [t] surface, such as that doing on a flat deck roofing work “nothing phrase He reads the which involved here. ...” referring the condition of the inherently dangerous” as from the factual issue thereby withdrawing flashing, “doing roofing jury. the reference is Plainly, however, being indisputably was surface,” which on a flat deck work uncertainty Any was re accident. done at the time clearly stated by other instructions which solved fact, whether jurors as a determine, were to be no doubt There can existed. dangerous condition additional in the issue when jurors considered so as a factual one definitely the issue posed structions which are read. argues,
Pauly however, that an de also instruction inherently roofing dangerous not conflicts scribing work as required relating degree of caution with another one safety. exercising of him in reasonable care his own charged instruction, jurors were a the latter when beyond employment requires one to take risks those lawful ordinarily reasonably prudent would be taken situation, they necessities of such a insofar as person, “the limit the caution may that he take safety, for his own lessen the amount of required caution of him law in the exercise of ordinary care.” In effect, claims, he was told that he position was not in a instruction, therefore, erroneously specified the required amount of caution of him for safety his own and enabled it to hold that lawful proper activities worker amounted negligence.
The challenged instruction defines the duties of the de
fendants toward
and does
purport
encompass
*10
Pauly’s duty
regard
safety.
with
upon
his own
It is based
Hollywood
Hard v.
Club,
P.2d
Turf
716],
comparable
where
ain
situation the court said: “There
nothing
is
inherently dangerous
doing
high
in
on a
work
(citation)
scaffold
it
upon
therefore was not incumbent
appellant
[general
respondent
to advise
contractor]
[em
ployee of
against using
a
his own scaffold.”
subcontractor]
(P. 275.)
upon
For that rule the court relied
Schmidlin v.
Planing Mill Co.,
983],
Alta
Apparently in the Hard case the court was concerned with possible a extension of the rule concerning nondelegable duties to a situation where a contractor be held liable for a failure of a subcontractor to exercise due furnishing care in equipment employee. to his Because activity there shown “inherently dangerous” not was (meaning apparently not ultrahazardous), the court held that there responsi- was no bility of employee the contractor to warn the any defect in by equipment employer-subcontractor. furnished
Here, apparent purpose of the instruction was to advise general that the contractor duty was under no Pauly dangers arising warn from his doing surface, work on a flat deck which would apparent experienced roofer. view of the numerous instructions Pauly’s correctly duty defined for his safety, own it is jurors very that the would doubtful attach to this instruction given by it Pauly. interpretation So to hold would re- suppose jurors quire guilty court found him negligence per- of contributory doing properly acts to be by engaged merely formed a roofer because one uncertainty in in- occupation Any them. would not do Pauly. prejudiced struction could not have duty relating sub instruction, Another to the plans and regard complying contractor with chal specifications contractor, furnished “any decided lenged ground unsupported on the that it is however, is legal authority.’’ instruction, based case or This of, comment upon, statement and is an almost verbatim Furthermore, of Torts. to section 404 of the Restatement Logan, the could only since to the it related instruction. predicated upon this not have its verdict Pauly’s final contention is judge that the trial com prejudicial mitted error in excluding proof his made offers during They testimony rebuttal. consisted of and another witness who had plaintiff. testified for the ground for exclusion of this it evidence presented only a previously given by reiteration of that them. such, only As cumulative, said, cannot be as a of law, judge matter that the trial abused his discretion excluding (Cf. it. Marshall, Cal.App.2d 490, Moore 494-495 judgment purported appeal affirmed and denying
the order trial new is dismissed. *11 Gibson, Shenk, J., Traynor, C. J., J., Schauer, J., and J., Spence, concurred.
CARTER J. I dissent. agree I plaintiff with that certain preju- instructions were dicially erroneous. hotly disputed question A of fact in case, and a most important one, plaintiff was whether failed to exercise due care when he did not see the dangerous condition of the flashing. The record that on trips shows his four to the roof he was each carrying, time, heavy a load and that he was walking ground on uneven which a necessitated close watch to see going. where he was Plaintiff’s evidence also showed customarily a roofer worked all over roof, including flashing; and that was not the custom flashing to leave unsupported; defendant’s evidence was to the effect necessarily there custom, was not such a and that unsupported. merely was sometimes left This created a con- 662 proper instructions,
flict—the which, resolution of under was litigant for the jury. A entitled to determination (Buckley v. presenting theory of the ease instructions his ; Co., Shell 209 P.2d Morrow Cal.App.2d Chemical 32 453] [89 v. 15 v. Mendleson, Cal.App.2d 1302]; 15 P.2d Stickel [58 16]). v. Durfee, 402 P.2d Ferrula Cal.App.2d 88 416, 294], Santa P.2d Lines, Cal.App.2d Fe Bus give it was instructions court’s stated that was the theory of every expounding upon reasonable law (See also Mat support case which in the evidence. found 1051]; Baugh sumoto P.2d Renner, Cal.App.2d v. 406 [202 City v. 671]; Rather P.2d Beatty, 786 [205 Cal.App. 2d County Francisco, 81 & San unsupported flashing presented Whether the an obvious required warning plaintiff and so no the de- .from jury a fact question fendants was to determine. agree
I plaintiff following instruction re jury’s suggesting moved that issue determination inherently dangerous nothing the answer to it: “There is doing in surface, on flat as that work deck such involved, here therefore it not encumbent which was and was upon concerning plaintiff either of to advise the defendants any apparent which, being plainly condition or conditions prudent man observable, would advise a reasonable any dangers inquiry concerning probable make quoted just part in first their use.” The involved law, that there jury, tells the as a matter was instruction “apparent” roof; con nothing dangerous on the reasonably prudent “plainly dition observable” was in jury the most issue took from the contested person. This latent, patent, and the condition was case: whether dangerous. The was not the condition whether or was “inherently dangerous” in the flatly nothing there told on a sort of doing. Tacked as plaintiff was type of work of whether that11 the statement afterthought was plainly were not existing herein were or or not the conditions one of person is to a reasonable observable this ease evidence determine from for the fact jury, after instructions.” light the Court’s in the work, dangerous nothing being told there *12 “plainly patent) condition (and any hence “apparent” the issue. decide it told was then observable” majority clearly itself. inconsistent is The instruction
663
opinion
get
by saying
seeks
around this fact
plainly
instruction does not state that
the condition “was
regard
specifies
observable, but
the defendants’ duties
being plainly
‘any apparent
conditions,
which,
condition
inquiry
man make
observable, would advise a reasonable
ambiguous.”
most,
At
concerning probable dangers.’
is
Nothing
could be more certain
This statement
ridiculous.
jury
that neither of the de
than that
was instructed
plaintiff
“apparent
under a
to warn
an
fendants was
which, being plainly observable would advise a
condition”
concerning any
inquiry
make
reasonable and
man to
“being”
“existing,
word
danger. Webster defines the
as
’’
present.
rule
The correct
is set forth in 24 California Jurisprudence,
‘‘
seq.:
841
101, page
province
et
section
invaded where
instruction assumes the existence of
fact
in evidence,
which is not
respect
or with
to which there is
evidence,
conflict of
error
respect
in this
is not,
held,
charges
been
cured
has
other
which submit to the
whether
(Cahoon
such fact exists.”
v.
197,
Marshall,
202;
25 Cal.
Berkovitz v. American River Gravel
195
Co.,
Fidelity
191
P. 675];
Cal.
v.
[215
etc. Co.
Paraffine
Paint
Cal. 159
P.
;
7
St. Ores v.
[16
138]
452];
720;
74
148
53
Tomlinson,
Cal.
P.
Wodd v.
Cal.
[15
Bradley
Lee,
362;
Center,
v.
38
Caldwell
Cal.
v.
I would reverse the 10, 5612. In Bank. June No. 1955.]
[Crim. POND, PEOPLE, Respondent, THE STILLMAN Appellant.