Boucher v. American Bridge Co.
| Decision Date | 20 January 1950 |
| Docket Number | No. 14205,14205 |
| Citation | 213 P.2d 537,95 Cal.App.2d 659 |
| Court | California Court of Appeals Court of Appeals |
| Parties | BOUCHER v. AMERICAN BRIDGE CO. |
Walter Shelton, San Francisco, James F. Hoey, Martinez, for appellant.
Palmquist & Sugden, Stanley C. Smallwood, Oakland, for respondent.
In an action for damages for personal injuries, a jury verdict awarded plaintiff $18,600. From the judgment entered thereon, and after denial of a motion for new trial, defendant appealed.
Questions Involved.
Primarily the questions involved depend upon the duty owed in the construction of a building by one independent contractor to the employees of another independent contractor. The questions raised are: (1) alleged insufficiency of the evidence to prove negligence on the part of defendant; (2) alleged assumption of risk by plaintiff; (3) alleged contributory negligence by plaintiff; (4) alleged error in refusal of certain instructions.
Facts.
There is practically no conflict in the facts as to the accident. There is some conflict on the question of plaintiff's right to be at the point from which he fell. Columbia Steel Company was building a mill near Pittsburg, California. Defendant was employed to furnish and erect the structural steel framework. Plaintiff was an employee of Fischbach & Moore, who were employed to install the electrical work on the steel framework. The roof structure was under construction, and as the structural steel was put up, plaintiff and his fellow employees followed with their electrical installation. Starting from the west end of the building, there was a steel truss every 20 feet, set across the building, from side to side (north and south). Each truss was in the form of a triangle, that is, there was a horizontal beam running parallel to and about 35 feet from the ground and two others sloping upwards to form a peak. Between the base and the other two parts were vertical and diagonal bracings. The distance between two trusses is called a "bay" and was in this case 20 feet. On top of the upper arm of the trusses, and crosswise to them (parallel to the length of the building) are attached "purlins." Each is about 8 inches deep and has two 3-feet flanges, facing the same direction. They are placed with the flanges facing up the slope toward the peak of the roof, and are spaced about 5 feet apart, going from the peak of the roof down to the eave at the side of the building. It is upon these purlins that the roofing eventually rests. However, no roofing had been placed on the building at the time of the accident here involved. In order to strengthen the purlins, "sag rods" are used. They run crosswise to the purlins (parallel with the trusses--north to south) and are about 3/4 of an inch in diameter. Holes are drilled in the purlins, a rod is placed joining two purlins, and nuts are screwed on the ends of the rod protruding from the holes. Two sag rods were installed in each bay (space between two trusses) about 6 feet and 9 inches from either truss.
At the time of the accident the steelworkers had moved from west to east and had installed all of the sag rods west of truss No. 23. Just east of truss No. 23 sag rods had been placed on top of the purlins but not attached permanently. They were placed with the lower end resting on the lower flange of a purlin and the upper end resting on top of the next purlin. They were closer to truss No. 23 than would be their final permanent position. The custom in the trade was to bring up all the sag rods for one bay, resting each rod on the purlins as described, and then to put the sag rods permanently in place, working down from the peak of the roof. On the day of the accident the steelworkers began on the bay east of truss No. 23 in the afternoon after lunch, and were hoisting up the rods, laying them in the temporary position. The accident occurred at about 3:00 p.m.
The electrical workers were putting up four rows of lights extending the length of the mill, on the underside of the horizontal trusses. They worked on platforms supplied by plaintiff's employer. The contract between Columbia Steel and the electrical contractor required the latter to provide ladders and platforms for electrical workers. Plaintiff was about to descend to the ground from a platform on which he had been working. There was evidently no ladder from that same platform. In order to go down the ladder he had used in getting up, he would have had to go along 50 feet on a steel truss, 150 feet on a different scaffolding, and another 30 feet on structural steel. Plaintiff saw a ladder on the south wall of the mill, which was only about 30 feet away, and could be reached by walking along the horizontal beam of truss No. 23. He had never before walked along that truss because his work had not yet brought him into that area. However, he had never been restricted as to what ladders to use and the custom was that most trades used the most convenient ladder they saw. As he started moving along the truss toward the south side of the building he grasped braces to help support himself. He did not test each one to see if it was secure, because he depended upon a trade rule that everything set high up over an open area should be secure. As he moved toward the south side of the building he had to go around one of the braces on the truss. He held on to the brace with his right arm and reached up with his left arm, taking hold of a sag rod which he saw on top of the purlins, about 3 feet to his side. It appeared to be secure when he took it. It pulled loose, so that he had nothing holding him up, and he fell to the ground 35 feet below, landing on his feet, receiving serious injury.
At the moment of his fall, plaintiff's fellow workers did not see any steelworkers in the area. The men installing the sag rods were Jeffrey, Henley and Steadman. They testified that at the time of the accident Henley was up on the roof where the rods were being placed, Jeffrey had been on the roof and was moving down to the truss, where rods were received from below, and Steadman was on the ground, obtaining more rods.
As to the right of plaintiff to be on the unfinished truss, he testified that the steel the electricians had been working on had all been fastened down and that "we had learned to rely on the steel and knew that it was a trade practice to put everything up in a safe and workmanlike manner and so located that it would not endanger the lives of the others working in the area"; that no restrictions were placed on the electricians in the use of ladders, and that all of the trades used the "most convenient and handiest ladder" they saw; that he had taken hold of sag rods before and that he had never seen any that had not been secured, nor laid close to the top of the truss (as they were at the time of the accident). Plaintiff had worked in this particular building for about a week, 90 per cent of which time he was up on the roof structure. When asked on cross-examination if any one from defendant had ever told him it was all right to go to the place from which he fell, he answered that his employer's foreman had instructed him to go to work on this section. There is no evidence that he received any instructions from any of defendant's employees. Witness Nelson, also an electrician, testified that it was the custom in moving about the building to take hold of the framework and to rely upon the custom that "everything is secured down if it is hoisted aloft in an open area." Another electrician, Chiartano, testified to the same effect, even if steel were "brought up there temporarily."
As opposed to this testimony the defendant's superintendent, Schultz, testified that the method of leaving the sag rods temporarily unsecured was the method customarily used in this type of construction (others of defendant's employees testified to the same effect); that He further testified that the electricians were supposed to follow up the finished part--install their electrical work on that portion of the steel structure that was finished. There is no testimony that the electricians had express permission to go on the truss in question, nor is there any testimony that they were instructed not to go on an uncompleted truss, other than the statement of the superintendent to the effect that his practice there was not to allow any other trade to work ahead of the unfinished business. This is not evidence that he or any one else had told the plaintiff or the other electricians not to work ahead of the finished steel. That the other trades did work ahead in this respect might be evidenced by the superintendent's statement, "We had a lot of ups and downs in that respect."
While it is not strong, there is evidence from which a jury could find that plaintiff and the other electricians were following the steelworkers, used ladders of the steelworkers as well as their own, had not been told not to use an uncompleted truss (there was no evidence of their being told when a truss was completed), and that under all the circumstances of the case there was an implied invitation to plaintiff to use the truss in question to get to the nearest ladder. The jury having found that there was such invitation, there was sufficient evidence, in view of the testimony concerning the custom that steel aloft was always secured and that the plaintiff and the other electricians always relied on that custom, to support a finding of negligence on the part of defendant in leaving the sag rods unsecure, at least without some warning to the oncoming electricians.
2, 3. Assumption of Risk and Contributory Negligence.
Under the circumstances of the case, particularly in view of the testimony concerning custom and practice in the...
To continue reading
Request your trial
-
Ross v. DeMond
...P. J. concurring; Fernandez v. Consolidated Fisheries, Inc. (1950) 98 Cal.App.2d 91, 95-96, 219 P.2d 73; Boucher v. American Bridge Co. (1950) 95 Cal.App.2d 659, 667-669, 213 P.2d 537; Hughes, Duties to Trespassers: A Comparative Survey and Revaluation (1959) 68 Yale L.J. 633, particularly ......
-
Bogart v. Hester
...California cases cited on this point are Gay v. Cadwallader-Gibson Co., 34 Cal.App.2d 566, 93 P.2d 1051; Boucher v. American Bridge Co., 1950, 95 Cal.App.2d 659, 213 P.2d 537; and Newman v. Fox West Coast Theatres, 1948, 86 Cal.App.2d 428, 194 P.2d One can be held liable for negligence only......
-
Kading v. Willis
...91, 97, 219 P.2d 73; Hession v. City and County of San Francisco, 122 Cal.App.2d 592, 601, 265 P.2d 542; Boucher v. American Bridge Co., 95 Cal.App.2d 659, 666-669, 213 P.2d 537. The court said in Fernandez v. American Bridge Co., 104 Cal.App.2d 340, at page 343, 231 P.2d 548, at page 550: ......
-
Holliday v. Miles, Inc.
...when in fact it would have been based upon the reasonably foreseeable consequences of a course of conduct. (See Boucher v. American Bridge Co., 95 Cal.App.2d 659, 213 P.2d 537.)'(T)here is evidence from which a jury could find that plaintiff and the other electricians were following the ste......