Hall v. Paul Bunyan Lumber Co.

• Decision Date: 11 February 1960
• Citation: 177 Cal.App.2d 761,2 Cal.Rptr. 519
• Court: California Court of Appeals Court of Appeals
• Parties: Marianne HALL, Jerry R. Hall, a minor, Barbara Lynn Hall, a minor, Suzanne P. Hall, a minor, by Marianne Hall, their guardian ad litem, Plaintiffs and Respondents, v. PAUL BUNYAN LUMBER COMPANY, a Corporation, and L. T. Anderson, Defendants, L. T. Anderson, Appellant. Civ. 9661.

Page 519

2 Cal.Rptr. 519

177 Cal.App.2d 761

Marianne HALL, Jerry R. Hall, a minor, Barbara Lynn Hall, a minor, Suzanne P. Hall, a minor, by Marianne Hall, their guardian ad litem, Plaintiffs and Respondents, v. PAUL BUNYAN LUMBER COMPANY, a Corporation, and L. T. Anderson, Defendants L. T. Anderson, Appellant.

Civ. 9661.

District Court of Appeal, Third District, California.

Feb. 11, 1960.

As Modified March 4, 1960.

Hearing Denied April 5, 1960.

Halpin, Halpin & Leep, Redding, for plaintiffs-appellants.

Barr & Messner, Yreka, for defendant-appellant.

Glenn D. Newton, Redding, for defendant-respondent.

WARNE, Justice pro tem.

Respondents brought this action for wrongful death alleging that defendants were negligent in the construction of a platform from which Roy D. Hall fell, resulting in his death. A jury returned a verdict against the defendant-appellant Anderson and judgment was entered thereon. A nonsuit was ordered in favor of defendant Paul Bunyan Lumber Company.

Appellant is a licensed contractor and at the time of the fatal accident was the general contractor for doing general carpentry work as an independent contractor in the construction of a sawmill, planing mill and dry kilns for the Paul Bunyan Lumber Company. The contract under which appellant was acting provided in part that he was to furnish all the labor and materials to 'make a complete and finished sawmill building ready for, but not including the installation of electrical and mechanical sawmill machinery and equipment.' Paul Bunyan Lumber Company, owner, reserved the right to let other contracts, and appellant was bound to 'afford other contractors reasonable opportunity for introduction and storage of their materials' and to 'properly connect and coordinate his work with theirs.' Appellant was also bound to 'erect and maintain ladders, scaffolds and runways,' and to 'maintain adequate protection from injury or loss arising in connection with this contract,' and to 'adequately protect adjacent property as provided by law,' and to 'provide and maintain all passageways, guards, fences, lights, and other facilities as required by law.'

The firm of Trowbridge and Flynn, electrical contractor, was employed by Paul Bunyan Lumber Company for the installation of the electrical equipment on the job; and the deceased, Roy D. Hall, was employed by said Trowbridge and Flynn as an electrical worker on the project at the time of his death. During the time in question, one Charles Porter, employed by appellant as a carpenter, constructed a platform for the use of the electrical contractor. This work was requested by an employee of Trowbridge and Flynn and authorized by appellant's foreman. At the time the work was authorized by appellant's foreman he was told that the platform was to be used for raising materials and that there would be no men on the platform. However, the employees of the electrical contractor used it as a scaffold upon which to stand while performing their work. The platform was built on a pallet owned by Paul Bunyan Lumber Company to specifications furnished by the electricians and was attached to a 'hyster.' Carpenter work furnished to the electrical contractor by appellant was billed to and paid by the Paul Bunyan Lumber Company. The platform had no guard rails, and the deceased, Roy D. Hall, an employee of Trowbridge and Flynn, making use of the platform as a scaffold, sustained fatal injuries when he fell from the platform at a height of more than 10 feet above the ground.

As grounds for reversal, appellant first contends that a finding of negligence is not supported by the evidence. We do not believe there is merit in this contention. Title 8, California Administrative Code, article 17, section 1616(a), provides: 'Railings shall be provided on all open sides and ends of all built-up scaffolds, runways, ramps, rolling scaffolds, elevated platforms, or other elevations ten feet (10') or more above the ground, floor or level underneath.' Appellant had the responsibility of complying with the hereinabove quoted safety order as to any scaffold to be used by workmen and any failure to do so was negligence per se. Atherley v. MacDonald, Young and Nelson, 142 Cal.App.2d 575, 587, 298 P.2d 700; Bickham v. Southern Cal. Edison Co., 120 Cal.App.2d 815, 820, 263 P.2d 32; Mula v. Meyer, 132 Cal.App.2d 279, 282 P.2d 107; Finnegan v. Royal Realty Co., 35 Cal.2d 409, 218 P.2d 17.

Appellant argues that in order to impose a duty upon him to furnish a safe scaffolding it must be shown that he knew, or should have known, that the platform was to be used as a scaffolding for men to work upon. While there is testimony in the record, as heretofore stated, that neither appellant's foreman nor the employee who constructed the platform was told other than it was to be used for the purpose of raising materials, not as a scaffold for men, there is also substantial evidence that appellant and his employee should have seen the workmen using the platform as a scaffold in the performance of their labors. They admit they passed the 'hyster' and platform where the deceased was working 'a dozen times a day.' It was appellant's contractual duty to 'erect and maintain * * * scaffolds' and to maintain adequate protection from injury as provided by law. It was also appellant's duty to see that such mandates were carried out, and he cannot be excused because he and his employees 'didn't happen to look up' when passing the scaffold. The jury had a right to infer that they saw what was in plain view and were negligent in failing to remedy the unsafe condition or prevent the workmen from using the platform as a scaffold. The jury could find, and appearently did, that appellant knew or should have known that workmen were using the platform. The lack of actual notice is no defense if there is an opportunity to inspect. An inspection would...