Ferrel v. Safway Steel Scaffolds
| Decision Date | 02 January 1962 |
| Citation | 18 Cal.Rptr. 533 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Elmer L. FERREL, Plaintiff and Appellant, v. SAFWAY STEEL SCAFFOLDS, Safway Steel Products, Inc., a corporation, Vegetable Oil Products Company, Inc., a corporation, Defendants and Respondents. Civ. 25353. |
Edgar Simon, Beverly Hills, for appellant.
Spray, Gould & Bowers, Philip L. Bradish and Henry E. Kappler, Los Angeles, for respondents Safway.
Schell, Delamer & Loring, Lee A. Solomon, Los Angeles, for respondent Vegetable Oil Products Co., Inc.
This is an action for damages for personal injuries occasioned when plaintiff fell from a movable, 'tower' type scaffold supplied by one defendant while working on the premises of the other defendant. Plaintiff appeals from a judgment on a jury verdict in favor of defendant Safway, the supplier of the scaffold, and from a judgment entered against him and for defendant Vegetable Oil Products Co., on whose premises the work was being performed, notwithstanding a verdict in his favor. Plaintiff's employer, Bay View Welding Company, an independent contractor employed by Vegetable Oil to perform the work in question, is not involved in this action. Also appealed from is an order granting Vegetable Oil a new trial in the event the judgment notwithstanding the verdict is reversed.
In 1957 a storage tank on the premises of Vegetable Oil was damaged by fire and an explosion. The roof was destroyed and the upright shell, cylindrical in shape, had buckled inwards in places and suffered creases in others. Vegetable Oil entered into a contract with Bay View, a contractor licensed by the State of California, to repair the damage. All the work was to be done by Bay View, without direction or control by Vegetable Oil. All equipment and tools, including the scaffold, were obtained and supplied by Bay View. At no time did Vegetable Oil exercise any degree of control over the tank or the work pertaining to it.
In order to straighten the buckles and creases a tower-like structure called a scaffold, which is supported by wheels, or casters, was placed inside the tank in question. Workmen could stand at various levels on the scaffold by moving wooden planks from one level to another. At the thim of the accident plaintiff was working at the twenty-three foot level, near the top of the tank. The device supplied by Bay View to straighten the buckles was in the nature of a long pipe which extended nearly the diameter of the tank. At one end of the pipe a jack was affixed. The pipe and jack together combined to make a device which increased in length as the jack handle was raised and lowered. To facilitate the operation a bar about five feet in length was supplied, apparently for use in conjuncation with the jack handle. The pipe-like device was suspended by a cable so that it might be raised or lowered to the desired level. To straighten a buckle, one end of this device would be placed against the inside wall of the tank and the other end against a buckle at the opposite side of the tank. The jack would then be manipulated so that the device would expand and force out the buckle. The evidence indicates that plaintiff was injured when, having straightened a buckle in the above manner, he proceeded to retract the jack. When the pressure was released the metal suddenly buckled back in toward its former position, causing the aforementioned bar to strike plaintiff and propel him off the scaffold. He was severely injured.
With respect to defendant Safway, the supplier of the scaffold, plaintiff rests his appeal on the sole claim that the court erred in failing to instruct the jury on certain provisions of the labor code and certain safety orders which were in evidence. It affirmatively appears on the face of the record, however, that although these instructions were offered originally, they were withdrawn at plaintiff's request in the course of negotiations between counsel. Plaintiff argues in his opening brief that these instructions were resubmitted. In his closing brief he retreats to the position that in any event they were only conditionally withdrawn and the condition was never met. We have read the colloquy between counsel and the court, covering nearly one hundred pages of transcript, on which plaintiff bases his claim, and we find his contention to be wholly without merit and in conflict with the clear state of the record. The judgment with respect to Safway must therefore stand. (Cowin v. Lindsay, 175 Cal.App.2d 62, 345 P.2d 347.)
The appeal relating to Vegetable Oil rests on the contention that the record contains evidence that would support a judgment imposing liability on Vegetable Oil on theories which were either submitted to the jury or which were embodied in instructions which were improperly refused. The rules relating to judgments entered notwithstanding a verdict are well settled--they are proper only when, disregarding conflicting evidence and indulging in every legitimate inference which may be drawn in favor of the complaining party, the result is that there is no substantial evidence to support the verdict. (Biggar v. Carney, 181 Cal.App.2d 22, 5 Cal.Rptr. 94; Bell v. Huson, 180 Cal.App.2d 820, 4 Cal.Rptr. 716.)
Plaintiff argues that Vegetable Oil (hereafter referred to as defendant) violated not only its independent duties to plaintiff, but also that it is vicariously responsible for the negligence of Bay View, the independent contractor who employed plaintiff. We will first consider the contentions relating to defendant's independent duties.
Only two instructions were submitted to the jury directly bearing on the liability of defendant. The first reads: 'If one engages another to perform work when he knows, or in the exercise of ordinary care would know, that the person, firm or corporation engaged will use improper and unsafe equipment which is likely to cause damage to others, then the one engaging such a person, firm or corporation is liable for any damages proximately caused by the performance of such work because of the use of any such improper or unsafe equipment.' While this instruction is a correct statement of the law (see Risley v. Lenwell, 129 Cal.App.2d 608, 277 P.2d 897), we have carefully examined plaintiff's transcript citations and we find no evidence in the record which would support a conclusion that defendant knew or should have known that Bay View would use unsafe equipment. The fact they Bay View is a small outfit; and that it has no engineer on its payroll is not sufficient in itself for this purpose. There is evidence that Bay View consulted with engineers from time to time.
The remaining instruction bearing on defendant's independent duties reads, 'It was the duty of the defendant * * *, in the conduct of any active operations on its property, to use ordinary care to avoid injury to the plaintiff, and to use ordinary care to keep the premises in a reasonably safe condition for the plaintiff.' This instruction is based on BAJI # 213-C.I. Since there is no evidence that the injury arose from the 'conduct of any active operations' on the part of defendant, we need only concern ourselves with the portion of the instruction requiring that the premises be kept in a safe condition. (La Malfa v. Piombo Bros., 70 Cal.App.2d 840, 161 P.2d 964.) The servant of an independent contractor engaged in performing services on the land of another, for its possessor, occupies the status of an invitee. (Hinds v. Wheadon, 19 Cal.2d 458, 460, 121 P.2d 724; La Malfa v. Piombo Bros., supra; Peters v. Pioneer Laundry Co., 32 Cal.App.2d 494, 497, 90 P.2d 146.) 'The general rule * * * is that an owner or occupier of premises, who, by invitation * * * induces, or knowingly permits, a workman to enter the premises for the performance of duties mutually beneficial to both parties, is required to use reasonable care to protect the workman by supplying him with a reasonably safe place in which to work * * *' (Miller v. Pacific Constructors, Inc., 68 Cal.App.2d 529, 545, 157 P.2d 57, 65; Rodin v. American Can Co., 133 Cal.App.2d 524, 529, 284 P.2d 530; Delk v. Mobilhomes, Inc., 118 Cal.App.2d 529, 531, 258 P.2d 75; Moran v. Zenith Oil Co., 92 Cal.App.2d 236, 206 P.2d 679.) But while it is true that the possessor's duty toward workman is frequently expressed in this fashion, the principle cannot properly be applied here to impose liability upon defendant. As was stated in McDonald v. Shell Oil Co., 44 Cal.2d 785, 790-791, 285 P.2d 902, 905: (Emphasis ours.) The only danger arose from the manner in which the work was conducted. The McDonald case makes it clear that the 'duty to provide a safe place to work' under these circumstances is nothing more than the duty owing any invitee. It does not impose liability for conditions not under the possessor's control. While it may be true that the proximity of neighboring tanks made it necessary to perform the job from the inside of the damaged tank, defendant should not be required to tear down the other tanks to make the job safer. It was incumbent upon the contractor to choose the method by which the work was to be performed and take the proper precautions.
Directly in point in this context is West v. United States, 361 U.S. 118 123, 80 S.Ct. 189, 4 L.Ed.2d 161. In that case an employee of an independent contractor was injured while he was engaged in repairing a ship owned by the defendant. Under the agreement the contractor was to completely overhaul the ship, including cleaning and repairing all water lines, replacement...
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