Allen v. Jim Ruby Const. Co.

• Citation: 291 P.2d 991,138 Cal.App.2d 428
• Parties: Maurice Wilson ALLEN, Plaintiff and Respondent, v. JIM RUBY CONSTRUCTION COMPANY, a California corporation, et al., Defendant and Appellant. Civ. 20937.
• Decision Date: 11 January 1956
• Court: California Court of Appeals

Page 991

291 P.2d 991

138 Cal.App.2d 428

Maurice Wilson ALLEN, Plaintiff and Respondent, v. JIM RUBY CONSTRUCTION COMPANY, a California corporation, et al., Defendant and Appellant.

Civ. 20937.

District Court of Appeal, Second District, Division 3, California.

Jan. 11, 1956.

Hearing Denied March 8, 1956.

Schell, Delamer & Loring, Louis M. Welsh, Los Angeles, for appellant.

Levy, Russell & De Roy, George De Roy and Jack Levine, Los Angeles, for respondent.

SHINN, Presiding Justice.

In this action for personal injuries the complaint alleged that Jim Ruby Construction Company (a fictitious name under which Jim Ruby was doing business), while doing construction work for Freuhauf Trailer Company upon the latter's property caused an opening, hole, and excavation to be so carelessly and negligently left open and unguarded that plaintiff, while lawfully on the premises, fell into said opening and received injuries; defendant answered denying the material allegations of the complaint. The cause was tried to a jury and verdict and judgment were in favor of plaintiff for $6,000; defendant appeals from the judgment.

There was evidence of the following facts. In the course of the work in which defendant was engaged it was necessary to make an excavation which involved a breaking up of concrete, the cutting off and removal of steel rods and the removal of all material necessary in the excavation of a pit. Removal of the concrete was done by Air Power Tools Company, subcontractor of defendant, and it had been completed several days before the accident occurred. In this work the concrete was broken up, rods were cut, and the material was thrown out of the pit by hand onto the ground where is was picked up by hand and thrown into trucks to be hauled away. Defendant's contract was not completed; he still had to lower the pit to a uniform depth of 10 feet and line it with concrete. At the time of plaintiff's accident there was in existence an excavation 33 feet by 11 feet, which was at ground level at the west end and graduated to a depth of 9 feet at the east end. Plaintiff was an employee of Freuhauf, assembling trailers, and had come to work about 4 p. m., November 2, 1951, while some of defendant's employees were still at the location. Plaintiff was working on the northerly side of the pit about 10 feet distant therefrom when he decided to walk past the pit on the north side to a washroom. As he proceeded he stumbled on a steel bar or rod 3 or 4 feet long, which was lying on the ground 4 or 5 feet north of the pit and about midway between the easterly and westerly ends of the pit. His foot struck the bar; he lost his balance and went forward into the pit. There was no barrier around the pit. No witness observed plaintiff's fall into the pit. Plaintiff had observed work on the pit for about a week, had looked into it and knew how deep it was. He testified that he believed the rod was a reinforcement rod; it had ridges on it; it was 3 or 4 feet long and maybe an inch thick. As he stumbled he did his best to alight on his feet in the bottom of the pit and he did alight on his feet but his legs doubled under him. There was a pile of dirt across the west end of the pit; there were some air hoses lying on the ground and some electric cords, which were not closer than 6 to 10 feet from the pit, and these were used in Freuhauf's work; he had not seen the iron rod before; he saw it from some distance after he was assisted and 'hobbled' out of the hole but not before; he didn't examine the rod to see what it was. He glanced at it after he came out of the hole. He was in excruciating pain at the time. He was not sure whether the rod was something that was used by the Freuhauf people; it could have been, but he did not know.

As we have seen, the complaint charged negligence of defendant in failing to maintain a barricade around the pit. In plaintiff's brief it is argued that this was negligence. We shall dispose of this contention after we have discussed the claim of negligence in allowing the rod to lie on the ground.

The briefs argue the question whether there was sufficient evidence that defendant was guilty of a breach of duty. Plaintiff argues (1) it could have been inferred that the rod had been left by workmen of defendant or his subcontractor, since plaintiff testified it had ridges on it, and presumably it was the type of rod the subcontractor had been removing with the concrete; (2) if this were true defendant was chargeable with knowledge that the rod was there; (3) if some one else placed the rod there it could have been inferred that it had been there long enough for defendant to discover it; (4) as a necessary conclusion, that the condition was a dangerous one and defendant was negligent in failing to remove the rod.

With respect to defendant's replies to these arguments, it is sufficient to state that it is contended that plaintiff's version of the accident was incredible; the only charge of negligence in the complaint was the failure of defendant to maintain a barrier around the pit and plaintiff's claim that he stumbled over a steel rod was an afterthought; if plaintiff was walking parallel to the pit he would not have stumbled into it and if he did, he would not have landed on his feet; defendant's witness McSweeney, a Freuhauf employee and lead man on plaintiff's shift, testified that plaintiff received his injuries while he and fellow employees, Montes and Bustamente, were jumping in the pit from the shallow end into sand toward the deeper end; also there was no evidence from which it could be inferred that defendant was responsible for placing the rod on the ground or that he had actual or constructive knowledge of its presence. Plaintiff could not plead one specific act of negligence and recover on proof of another. Although these arguments are plausible, it is unnecessary to discuss them.

It was alleged in the complaint that plaintiff was lawfully on the premises, meaning, we suppose, that he was not a trespasser. He says he has always supposed that he was an invitee of Ruby, but he alleged and has mentioned no fact that would indicate the existence of that relationship.

Defendant is accused of only passive negligence, consisting of the alleged failure to maintain the portion of the premises he was using in a reasonably safe condition. Whatever duty he had with relation to the condition of the premises arose out of the relationship between himself and the plaintiff. The only theory of the case plaintiff advanced in his briefs was that he was a business invitee. He cited Louie v. Hagstrom's Food Stores, Inc., 81 Cal.App.2d 601, 184 P.2d 708, which he said is a case exactly in point. In that case the defendant, operating a food market, was held to a high quantum of care to keep his premises in a safe condition for his customers and chargeable with knowledge of an unsafe condition.

For reasons to be stated we are of the opinion that plaintiff's status was that of a licensee or a trespasser. Defendant was an occupier of that portion of the premises, use of which was necessary or incidental for the work he was doing for Freuhauf. Plaintiff, as an employee of Freuhauf, was its invitee, but this did not make him an invitee of defendant with respect to the area in and immediately surrounding the pit which defendant was using. They had no business together; plaintiff's presence in the vicinity of the pit was of no concern to defendant; the washroom was not maintained by defendant or under his control. It was not shown that it was...