Knight v. Contracting Engineering Co.
| Decision Date | 31 July 1961 |
| Citation | 194 Cal.App.2d 435,15 Cal.Rptr. 194 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Lyle KNIGHT, Plaintiff and Appellant, v. CONTRACTING ENGINEERING CO., a California Corporation, 1 Defendant and Respondent. Civ. 25278. |
Magana & Olney, Los Angeles, for appellant.
Sackett & Francoeur, Harry E. Sackett, and Henry F. Walker, Los Angeles, for respondent.
This appeal is by the plaintiff from a judgment in favor of defendant notwithstanding the verdict.
The action is one for damages for personal injury. Plaintiff was an employee of Alta-Frazer Edwards, Inc., (hereinafter referred to as 'Alta'), the roofing subcontractor, in the erection of a one-story building.
Plaintiff's 'Complaint for Damages for Personal Injuries' was filed December 18, 1958. Contracting Engineering Company, the general contractor, and Does I to XX were named as defendants. It was alleged that the defendants 'so carelessly and negligently maintained, operated and controlled the premises in connection with the construction of said building and so carelessly and negligently furnished or permitted the use of planks by employees of subcontractors which were in a dangerous and defective condition, and carelessly and negligently failed to furnish safe, proper and adequate footing to plaintiff; that plaintiff while walking across one of the defective planks so supplied by said defendants, fell approximately twenty (20) feet to the ground below when the same collapsed.'
Defendant, 'Contracting Engineers Company, erroneously sued herein as Contracting Engineering Company' filed its 'Answer' on January 5, 1959. Therein, the above negligence was denied and contributory negligence on the part of the plaintiff was pleaded.
The 'Pre-Trial Conference Order' was filed May 5, 1960. It incorporated a 'Joint Pre-Trial Statement' which set forth the contentions and issues as follows:
'Contentions
'The plaintiff contends that the defendant was negligent in that it furnished and permitted the use of planks by employees of subcontractors which were in a dangerous and defective condition; and in that it failed to furnish the plaintiff safe, proper and adequate footing. * * *
'The defendants (sic) contend that the (sic) were not negligent and that the plaintiff was himself contributorily negligent in that he failed to observe that the board was unsafe to walk on and that he negligently placed the board in the position it was in when he fell.
'Issues
'1. Negligence of the defendant.
'2. Contributory negligence of the plaintiff.
'3. Proximate cause.
'4. Damages.
The pre-trial order also makes reference to a document entitled 'Defendant's Separate Statement of Contentions' which provides in substance that plaintiff without permission, consent or authority of defendant wrongfully and voluntarily removed the planks from where they were stacked and placed them across an unfinished part of the roof area; that plaintiff was an experienced ironworker and familiar with customs and practices with respect to walking on iron rather than upon wood; that plaintiff had personal knowledge that the planks were notched, treated and processed for use in the construction of the building and were not to be used for scaffolding; and that plaintiff voluntarily and wrongfully chose to get down from the roof area at a place other than that provided for him and other workmen on the roof, thereby assuming all risk of injury.
On March 20, 1958, defendant was engaged as a general contractor in the erection of a one-story building in the City of Hawthorne. That morning plaintiff was employed by Alta to weld T-bars and he reported to the job site shortly after 9:00 a. m. A ladder was used to gain access to the roof of the building.
Mr. Bussie, Alta's superintendent, led a crew of three ironworkers, consisting of one Wiley, Knight (the plaintiff) and Murphy, in that order, up the ladder to an iron 'I-beam.' The ladder was facing east and was located near the third column in from the north wall.
Bussie and Wiley walked north on the iron to the tapered girder and thence east on the tapered girder to where their work was to begin. Plaintiff also walked north on the iron and was approximately seven or eight feet away from the latter when Murphy, who was a foreman, reached the top of the ladder and called to plaintiff to help him lay out some Wolmanized (i. e. treated) planks which were north of the ladder adjacent to the I-beam.
The planks were notched with two-inch notches cut on the side by defendant's carpenters. There was evidence that the planks were owned by defendant. The planks were to be used to form a gutter line and were not intended to support any other structure. Plaintiff's testimony discloses that he knew that the planks were notched and that they were not up there as scaffolding planks. 2 He also testified that he did not notice if there were any other planks in the vicinity of the stacked three to five planks; that although he saw some planks in the northwest and southwest sectors of the roof area, they were some distance away and he could not tell whether they were notched; that he saw no men in the south portion working with any plank; that he never saw either Bussie or Wiley use any plank. There was no evidence that he saw anyone using any plank at any time before the accident, other than Murphy and, of course, himself.
In spite of the knowledge that the planks were notched and not intended as scaffolding, plaintiff assisted Murphy in laying out the planks. Plaintiff and Murphy then walked east on the tapered girder to join Bussie and Wiley. Bussie gave the crew their directions on the spacing and welding of the T-bars and then Bussie left.
Some fifteen or twenty minutes later the coffee truck arrived and Bussie yelled, 'Coffee wagon's here.' Plaintiff and Wiley decided to go down for coffee and walked back along the tapered girder to the third plank with plaintiff in the lead. When plaintiff reached the third plank he turned south and took approximately three steps across the plank when it broke and he fell to the concrete slab twenty feet below. There was evidence that the plank had been cut across its width about half through its thickness.
It had sprinkled the morning of the accident and accordingly, the iron was wet or damp. Bussie testified that he never saw any of the three men walk on any wood; that while the steel was not dry, there was no difficulty in walking on it and that there was no necessity that morning to use any planks or wood to reach the work area. Wiley did not testify. Murphy testified that neither Bussie nor Wiley used any wood but both walked the iron; that Bussie, Wiley, and plaintiff walked the tapered girder and that only he (Murphy) had any trouble because he 'had slippery shoes on' as a result of which he 'crawled' on his 'hands and knees' along the girder. Plaintiff testified that he had no intention of using the planks until Murphy said something to him and that he had no difficulty in walking the iron; that he knew the steel was safe to walk on.
The defendant knew that some of the planks had been sawed half-way through and were located along the K-line. Defendant did not warn plaintiff or any other people not to use the notched planks as scaffolding. Defendant's agent told Bussie that he could use six certain unnotched planks for scaffolding. The record contains no evidence of any express permission to use any notched plank.
The 'Subcontract Agreement' between Alta (i. e. the roofing subcontractor) and defendant (i. e. general contractor) provides in pertinent part that the subcontractor was:
Pursuant to stipulation, no question has been raised on appeal as to the extent of plaintiff's injuries or the amount of the jury's verdict.
The same test governs the power of the trial court to grant a nonsuit, direct a verdict, or render a judgment notwithstanding, the verdict. In re Estate of Arnold, 16 Cal.2d 573, 581, 107 P.2d 25. What is set forth in 2 Witkin, California Procedure, Trial, Section 125, page 1857, is pertinent:
The trial court has the power to render a judgment notwithstanding the verdict only if, after observing the above test, it determines that there is no substantial evidence to support the verdict. As stated in 2 Witkin, California Procedure, Trial, Section 135, page 1865:
"When a motion for a directed verdict, which should have been granted, has been denied and a verdict rendered against the moving party, the court, at any time before the entry of judgment, * * * on motion of the aggrieved party, shall render judgment in favor of the aggrieved party notwithstanding the verdict.' (C.C.P. 629.) * * *
'* * * C.C.P. 629 permits the judge to promptly correct his judicial error in denying a directed verdict, * * *'
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