Atherley v. MacDonald, Young & Nelson, Inc.

• Decision Date: 27 June 1956
• Citation: 298 P.2d 700,142 Cal.App.2d 575
• Court: California Court of Appeals Court of Appeals
• Parties: Harry ATHERLEY, Plaintiff and Respondent, v. MacDONALD, YOUNG & NELSON, Inc., a corporation, and Stoneson Development Corporation, a corporation, Defendants and Appellants. Civ. 16740.

Page 700

298 P.2d 700

142 Cal.App.2d 575

Harry ATHERLEY, Plaintiff and Respondent, v. MacDONALD, YOUNG & NELSON, Inc., a corporation, and Stoneson Development Corporation, a corporation, Defendants and Appellants.

Civ. 16740.

District Court of Appeal, First District, Division 1, California.

June 27, 1956.

Hearing Denied Aug. 21, 1956.

Hadsell, Murman & Bishop, San Francisco, for appellants.

W. A. Lahanier, Frank B. Blum, John F. Gallen, San Francisco, for respondent.

PETERS, Presiding Justice.

Plaintiff, Harry Atherley, brought this action for personal injuries received by him when he fell down a stairway while working on the Emporium building then under construction in the Stoneson shopping district in San Francisco. The defendants are the Stoneson Development Corporation, the owner of the building, MacDonald, Young & Nelson, Inc., the construction managers for the owner, and the Fair Manufacturing Company, a subcontractor on the job. The jury awarded the plaintiff $45,000 against the first two named defendants, but exonerated the Fair Manufacturing Company. The first two named defendants appeal.

The accident occurred on a stairway located on the northeast corner of the building, and leading from the ground floor to the next higher floor. The Fair Manufacturing Company had the subcontract to install this and the other metal stairways required by the plans and specifications. The stairway in question, going upward, first has about eight steps, then a small landing, then 12 to 14 steps leading to a large landing. Here the stairway reverses itself and goes up an additional seven steps. Such metal stairways are designed so that the tread of the step ultimately is filled in with cement or asphalt or similar substance. At the time of the accident the fill had not been inserted, the stairway then consisting simply of the metal framework. To accommodate the fill there is a metal lip on the front of each step that projects upward about an inch and a half and then hooks over. The fill is poured to the level of this lip.

There is evidence that at the time of the accident the stairway was completely installed with the exception of the fill in the treads, and the installation of the handrails. This is challenged by appellants. They presented witnesses who testified that at the time of the accident several steps were still missing between the large landing and the upper level. The foreman of Fair Manufacturing Company testified that by June 21, 1951, his company had completed the stairway, except for the handrails, and that on that date he told the foreman of MacDonald, Young & Nelson that the stairway was completed and turned it over to him. This conflict was for the trial court, and must be resolved against appellants.

The treads of a metal stairway are not filled in until the building is completed, and the handrails are not installed until the lathing and plastering is completed. Admittedly, it was not the responsibility of Fair Manufacturing Company to install the fill, that being the responsibility of appellant MacDonald, Young & Nelson.

The respondent was employed as an electrician by the electrical subcontractor, and had been assigned, by his employer, the duty of running the fire alarm system on the northeast side of the building. On the day before the accident respondent and his foreman went up the stairway here involved as far as the large landing to look over the area where the fire alarm system was to be installed. The next morning about 10 a. m., June 27, 1951, respondent walked up the stairway as far as the large landing and installed the required conduit pipe for the fire alarm system. Using the stairway was the most practical way to reach the point where the fire alarm system was to be installed. He then proceeded to descend the stairway. He placed his left foot on the top step and, as he brought his right foot forward, the heel of this foot caught on the top or next lower stair. This threw him forward. There was nothing to grab. Respondent put his arms up to protect his face and fell some 18 feet before hitting on the small landing. As a result of this fall he admittedly suffered severe fractures of both wrists. For these injuries he was hospitalized for six weeks. In April of 1952 he again severely injured his right wrist while cooking. There is medical testimony to the effect that the second injury was probably the result of an incomplete union of the first injury. This second injury kept respondent in the hospital two months.

At the time of respondent's fall there were no barriers in front of the stairway. There was substantial evidence that, prior to the accident, various other workmen had used the stairway.

Respondent, as already pointed out, brought this action against the two appellants and the Fair Manufacturing Company charging them with negligence. Defendants denied the pertinent allegations and pleaded, as affirmative defenses, contributory negligence and assumption of risk. The jury brought in a unanimous verdict of $45,000 against the two appellants, but found in favor of the Fair Manufacturing Company.

Appellants first contend that as to them respondent was at most a business invitee to whom appellants only owed the duty to warn of known latent dangers, and were under no duty to warn of obvious dangers. They point out that an invitee to a building under construction is only invited to use the building in its then incomplete condition. This is undoubtedly the law. Kolburn v. P. J. Walker Co., 38 Cal.App.2d 545, 101 P.2d 747; Mitchell v. A. J. Bayer Co., 126 Cal.App.2d 501, 272 P.2d 870. This argument, however, is predicated on the unwarranted assumption that section 6400 of the Labor Code is not applicable to appellants. That section provides that: 'Every employer shall furnish employment and a place of employment which are safe for the employees therein.' This section, if applicable, adds this statutory duty to the normal duties of an invitor.

The trial court refused to instruct on the normal duties owed by an invitor to an invitee, but instead instructed that section 6400 was applicable and therefore there was also applicable a construction safety order of the Division of Industrial Safety, No. 1586 which, in subdivision (e), provides: 'Stairways on which the treads have to be filled in later with cement or other material shall have wooden treads not less than 7/8 inches (7/8"') thick, full width of the tread, firmly fitted in place and replaced when worn below the level of the metal nosing. Where skeleton iron stairs are installed, they shall have wooden treads and landings not less than one and one-fourth (1 1/4"') thick.'

Admittedly, the wooden treads required by this rule had not been installed at the time of the accident. The duty to install them was on appellants.

The trial court instructed that a violation of this safety order would constitute negligence as a matter of law; that if the jury found a violation of this safety order and that such violation proximately contributed to respondent's injuries, and that respondent was not guilty of contributory negligence, then their verdict should be against appellants. The trial court further instructed that the duty of complying with a safety order designed to protect members of the public rightfully on the paremises could not be delegated to a third person or contractor.

Appellants objected to the introduction of this safety order into evidence on the ground that it was 'incompetent, irrelevant, immaterial, not binding upon the owner or the agent of the owner but binding only upon the constructor of the steel stairway in question.' The safety order was admitted.

Appellants now urge that it was error to admit the safety order into evidence as against appellants because appellants were not the 'employers' of respondent, or of the electrical subcontractors, within the meaning of section 6400 of the Labor Code. Appellants cite cases which are not applicable to the factual situation here presented. Thus, they cite Neuber v. Royal Realty Co., 86 Cal.App.2d 596, 195 P.2d 501, holding that a lessor is not liable for non-compliance with an industrial safety order by a tenant who had employed the plaintiff, and Hauden v. Paramount Productions, Inc., 33 Cal.App.2d 287, 91 P.2d 231, holding that a general contractor was not liable for injuries suffered by an employee of a subcontractor where the general contractor had no right of control over the activity prohibited by the safety order. Obviously, in these cases, the defendants were not 'employers' of the injured party within the meaning of section 6400 of the Labor Code.

Similar to the Hayden case is Hard v. Hollywood Turf Club, 112 Cal.App.2d 263, 246 P.2d 716. There the employee of a subcontractor, using a scaffolding of his employer, attempted to sue the general contractor for injuries caused when the scaffolding collapsed. There was no evidence of any control by the general contractor over the employees of subcontractors, nor did the general contractor have anything to do with the construction of the scaffold. Under such circumstances the court properly held that the 'duty to furnish safe place of work' section had no application to the general contractor insofar as the injured employee of the subcontractor was concerned. This conclusion was based on the reasoning that the safety scaffolding sections of the Labor Code which were violated were not in the same portion of the Labor Code as the duty of employer sections of that Code, and were not included within the statutory definition of employer there contained. The Hard case was discussed and distinguished in Snyder v. Southern California Edison Co., 44 Cal.2d 793, 285 P.2d 912.

In the instant case the statutory duty to provide a safe place to work is embodied in section 6400 of the Labor Code which is in Part I of Division 5 of the code. In the same part and division of the code is section 6304 which defines...