Pehrson v. CB Lauch Construction Co.

• Decision Date: 09 October 1956
• Docket Number: No. 14933.,14933.
• Parties: G. A. PEHRSON, Appellant, v. C. B. LAUCH CONSTRUCTION CO., a Corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

237 F.2d 269 (1956)

G. A. PEHRSON, Appellant, v. C. B. LAUCH CONSTRUCTION CO., a Corporation, Appellee.

No. 14933.

United States Court of Appeals Ninth Circuit.

October 9, 1956.

James G. Towles, Kellogg, Idaho, Frank Funkhouser, Spokane, Wash., for appellant.

John D. MacGillivray, Spokane, Wash., Hawkins & Miller, Coeur d'Alene, Idaho, for appellee.

Before MATHEWS, BONE and CHAMBERS, Circuit Judges.

BONE, Circuit Judge.

Appellant appeals from judgment rendered upon a jury verdict for the appellee, and from the denial of his motion for a new trial. His complaint alleged that appellee failed to use reasonable care to make and maintain the premises safe for appellant to inspect the construction work below referred to.

Appellant is a resident of Spokane, Washington. At the time he received the personal injuries which were the basis of the instant action, appellant was engaged in performing work under employment by School District No. 82, Bonner County, Idaho. The pleadings of the parties show that he had been employed by this School District as an architect to prepare plans and specifications for a school building it planned to erect, and to supervise the construction for the purpose of seeing that it conformed with the plans and specifications. Appellee, an Idaho Corporation, had contracted with this School District to build this building.

On September 12, 1952 appellant and a school board member, Mr. Hirst, were inspecting the work and Hirst requested appellant to inspect the roof to see that it was being laid according to contract terms. To reach the roof it was necessary to use a sixteen foot ladder which rested against a ledge or canopy over the main entrance of the school building. This canopy extended about three feet out from the wall of the building. To get from the canopy or ledge to the roof it was necessary to pass over a three foot eight inch parapet wall. Several workmen testified that the usual procedure was to climb the ladder, step off from it onto the three foot canopy, and then step over the parapet wall to the roof.

At the time in question appellant reached the top of the ladder and while standing on the second rung from the top of the ladder grasped the parapet wall top by his left hand, and placed his right knee onto the concrete canopy. In this process the ladder began to move slowly to his left, he lost his hold of the parapet wall, and fell to the ground, a distance of approximately fifteen feet four inches.¹ At the point where he struck the ground it was littered with rubbish, some broken boards and some broken concrete blocks. He suffered severe injuries and pain which, according to medical testimony will be permanent.

The first specification of error is that the Court erred in striking from appellant's complaint certain allegations relating to waste material and rubbish about the base of the ladder. He had alleged negligence and carelessness on the part of appellee in failing to keep the premises free from accumulations of waste material and rubbish, particularly in and about the base of said ladder, during the progress of the work. During presentation of the appellee's case, the court excused the jury for a moment and sua sponte struck from the complaint the allegations regarding rubbish and waste material lying about the base of the ladder.² When the jury was recalled the trial judge informed the jury of his action. The record shows the counsel for appellant was present when the ruling was made and tendered no objection thereto.

While in his brief on appeal appellant assigns this ruling as error his comment to us is merely that he cannot understand why the lower court struck the allegation. His motion for a new trial was based on two specifically noted claims, viz., insufficiency of the evidence to justify the jury's verdict, and errors of law occurring at trial and "excepted" to by the plaintiff.

Assuming arguendo that striking this allegation from the complaint might have been error, counsel did not deem it of sufficient importance to his case to object to the action of the court or to designate it specifically as one of the bases of his demand for a new trial. We think the specification of error is not properly before us. Mitchell v. Atwood, 1935, 55 Idaho 772, 47 P.2d 680; Koch v. Elkins, 1950, 71 Idaho 50, 225 P.2d 457; Fed. Rules Civ.Proc. Rule 46, 28 U.S.C.A.; Capella v. Zurich General Acc. Liability Ins. Co., 5 Cir., 1952, 194 F.2d 558; Bucy v. Nevada Const. Co., 9 Cir., 1942, 125 F.2d 213, 218; 5 Moore's Federal Practice (2d Ed., 1951), pp. 1901-1905.

The second specification of error is that the Court erred in refusing to admit appellant's exhibit Number 11. This proposed exhibit was a certified copy of a pamphlet containing the Idaho Minimum Safety Standards and Practices for the Building and Construction Industry — Code No. 2, adopted September 15, 1947, by the Industrial Accident Board of the State of Idaho. Appellee objected to introduction of this exhibit. The Court made no definite ruling at the time, but took the matter under advisement, though he indicated that he thought it was a subject matter of which he would take judicial notice and that it need not be offered in evidence. Later he refused its admission.³

Idaho Code, § 72-1101 authorizes the Industrial Accident Board "* * * to adopt reasonable minimum safety standards * * *." Idaho Code, § 9-101 provides in part, "Courts take judicial notice of the following facts: * * * 2. Whatever is established by law." Idaho courts have taken judicial notice of regulations of federal departments made pursuant to acts of Congress, State ex rel. Taylor v. Taylor, 1938, 58 Idaho 656, 78 P.2d 125 (regulations adopted by Secretary of Agriculture); McFall v. Arkoosh, 1923, 37 Idaho 243, 215 P. 978 (regulations adopted by Secretary of Agriculture); and Idaho courts take judicial notice of reports of state officials and state government departments, Alberthesen v. State of Idaho, 1939, 60 Idaho 715, 96 P.2d 437 (Treasurer's Report and Auditor's Report); Ineas v. Union Pac. R. Co., 1952, 72 Idaho 390, 241 P.2d 1178 (Idaho Motorist's Guide). Minimum safety standards appear to have the force and effect of law. Appellant so contends. We believe that under the Idaho statutes and cases cited the trial court could and would take judicial notice of the Idaho minimum safety standards, if they were applicable in this case, and that it was not error to refuse admission of appellant's proposed exhibit No. 11.

Appellant assigns error by the Court in not permitting School Director Hirst (who preceded plaintiff up the ladder) to testify. The morning after appellant closed his case he sought to reopen his case to present the testimony of Hirst, who had just returned from a trip to Arizona. The Court refused to reopen the case. It is within the discretion of the trial judge to refuse to reopen a case after a party has rested. Giffen v. City of Lewiston, 1898, 6 Idaho 231, 247, 55 P. 545, 551; Froman v. First Nat. Bank of Weiser, 1922, 35 Idaho 10, 204 P. 145; Silkey v. Tiegs, 1931, 51 Idaho 344, 5 P.2d 1049; Hall v. Jensen, 1908, 14 Idaho 165, 93 P. 962; Gardner v. United States, 9 Cir., 1934, 71 F.2d 63, 64, certiorari denied, 1934, 293 U.S. 619, 55 S.Ct. 213, 79 L.Ed. 707; Postal Telegraph-Cable Co. of Washington v. Northern Pac. Ry. Co., 9 Cir., 1914, 211 F. 824; The Philadelphia & Trenton Railroad Co. v. Stimpson, 1840, 14 Pet. 448, 10 L.Ed. 535. An appellate court will not disturb the action of the trial court in the exercise of discretion unless it is apparent that there has been an abuse of discretion. Pease v. Kootenai County, 1901, 7 Idaho 731, 65 P. 432; Hall v. Jensen, supra; Froman v. First Nat. Bank of Weiser, supra. We are unable to say that this amounted to an abuse of discretion.

No objection was taken to the instructions given by the court. They included an instruction carefully defining contributory negligence, an affirmative defense pleaded by appellee in its answer.

The final assignment of error is that the trial judge erred in refusing to give appellant's requested instructions numbers 2, 3, 4, 5, 6, 7, and 8. These proposed instructions dealt with the minimum safety standards set by the above cited code of the Idaho Industrial Accident Board and their claimed application to appellant, and in particular the code requirements that waste material and the like not be allowed to accumulate, and that the ladder must be placed on a solid footing and be securely tied or fastened if in danger of slipping or tipping. In short, the proposed instructions largely embodied the language, or substance thereof, found in the Industrial Accident Board safety code.

Appellant contends that he came within the protection afforded by the minimum safety standards so set. No case is cited in the briefs and we have found none discussing the application of these minimum safety standards to an architect inspecting construction work for an employing school board. From a reading of the Idaho laws and court decisions we conclude that such an architect is not within the scope of protection of the minimum safety standards under this code.

The Idaho Workmen's Compensation Law, Idaho Code, § 72-1101 reads, in part: "The board Industrial Accident Board shall have the power, in addition to other powers herein granted * * * to adopt reasonable minimum safety standards and to make inspection in and about any place where workmen are employed." The Workmen's Compensation Law, Idaho Code, § 72-1011, defines "workman" in this manner: "`Workman' is used as synonymous with `employee' and means any person who has entered into the employment of, or who works under contract of service or apprenticeship with, an employer. * *" Appellant does not contend, nor do the facts show, that he was at any time an employee or workman hired by appellee to work on this building job, and hence one of a group or class obviously coming within the beneficial terms of...