Phillips v. G. L. Truman Excavation Co.

• Decision Date: 14 November 1960
• Citation: 9 Cal.Rptr. 25
• Court: California Court of Appeals Court of Appeals
• Parties: Louis J. PHILLIPS, Plaintiff and Respondent, v. G. L. TRUMAN EXCAVATION COMPANY, a corporation, and Melvin T. Green, Defendants and Appellants. Civ. 24146.

Page 25

9 Cal.Rptr. 25

Louis J. PHILLIPS, Plaintiff and Respondent, v. G. L. TRUMAN EXCAVATION COMPANY, a corporation, and Melvin T. Green, Defendants and Appellants.

Civ. 24146.

District Court of Appeal, Second District, Division 3, California.

Nov. 14, 1960.

Hearing Granted Jan. 10, 1961.

Opinion vacated 13 Cal.Rptr. 401.

Crider, Tilson & Ruppe and Henry E. Kappler, Los Angeles, for appellants.

Alvin E. Honoroff and Bernard Echt, Los Angeles, for respondent.

VALLEE, Justice.

Appeal by defendants from a judgment for plaintiff entered on a unanimous jury verdict in an action for damages for personal injuries.

On April 19, 1957 plaintiff, a lather, was working on a scaffold at the second-floor level of a 2-story apartment building under construction. A dump truck owned by defendant Truman Excavation Company was operated by its employee, defendant Green. The raised bed of the dump truck struck a 2 X 4 which protruded from the scaffold at the second-floor level. Plaintiff lunged through a window, landed on his head, striking the subflooring in the building.

Plaintiff was working alone on the scaffold at the rear of the building. He was under the eaves, nailing stucco wire to the building. The scaffold was in two levels: one level 8 feet, the other 12 feet, above the ground. It was made of vertical 2 X 4 uprights attached to the building by nailed steel braces. Two horizontal planks were affixed to the uprights. There was a railing of 2 X 4's bolted to steel frames. There were 2 X 12 walking planks on the scaffold which was 20 to 22 inches wide, and projected about 2 feet out from the building. A part of the 2 X 4 railing on the second-floor level protruded about 6 feet south of the southwest corner of the scaffold. There was a window in the second story of the building about 4 feet from the southwest corner. Plaintiff had gone to work on the job while the scaffold was under construction. He had been on the job about a week. Thereafter he worked 'all around the top of the building.'

The accident occurred about 3:45 p. m. on April 19, 1957. Defendant Green was operating a dump truck, delivering dirt to the job. He drove into the rear yard and backed the truck in an easterly direction, stopping parallel to the south side of the building. He raised the bed of the truck and commenced unloading. He did not get all of the dirt out and he pulled forward a couple of feet with the bed of the truck elevated. As he did so, the truck struck the protruding 2 X 4. No dirt was dumped under the scaffold.

Plaintiff testified: about 5 minutes before the accident he glanced down and saw the truck with a load of dirt in it; it was stationary; he did not see it after that; 'I was nailing the wire down and not paying any attention to anything but my own work, and all of a sudden the whole scaffold gave a terrific jerk and, well, for the moment--for the moment I was in fear of my life'; 'I was in fear of falling off the scaffold the jerk was so terrific'; 'I went through the window'; 'I lunged through it'; 'I went through sideways with my left side down'; he landed on his head on the subflooring inside; he wanted to get off the scaffold because 'I was in fear of falling to the ground'; before the accident he did not see the 2 X 4 that protruded from the scaffold; he got onto the scaffold by climbing out the window; there was no other way to get to the second level of the scaffold; he never saw the truck move; when he glanced down at it the bed was down; 'Q. Did you ever hear the truck in operation before the scaffolding gave a jerk? A. I heard it, heard a motor running down below me but--Q. Could you identify the noise of the motor when you heard it running as moving? A. Well, you mean when my back was to the truck? Q. Yes. A. Yes, it was moving. I mean I guess he was shifting around to dump the load, but I never paid any attention. I figured he was safe enough away from the scaffold and I went back about my business, but I wasn't watching. I was working with my work'; 'Q. Could you tell us when you first saw this truck how far the right side of the truck was from the scaffolding? A. Well, as far as I can remember it was a good safe distance from the scaffold'; at the time the scaffold jerked, he was facing the window; the scaffold moved 'one to two feet, about'; it did not fall; no boards fell down. There was evidence that a couple of metal tie-ins of the scaffold were loose by the impact of the truck.

Charles Westenhaver, called by defendants, testified by deposition: he was a partner in Fleetwood Housing, which was constructing the building; he witnessed the accident; 'I was directing the truck that pulled in this driveway and backed over under the staging her alongside of the staging'; '[t]he truck pulled into the back of the other building straight ahead, then backed up behind this building'; 'I stepped underneath the staging where I could see the truck driver and motioned him to keep him away from the staging'; the staging is the scaffold; the truck 'was a large dump truck'; 'I didn't say anything to the truck driver. He didn't say anything to me but I was underneath the staging for that purpose, in case he got anywheres near it'; the right-hand side of the truck backed 'about three foot away from the staging'; 'this man Phillips was on the top staging putting up chicken wire in preparation to putting the final coat of plaster on, and he was right by a window very similar to that, only it was on the back. The staging was about the level of the window where his feet was, about the floor level'; '[t]he truck backed up, lifted its dump and then started to move forward to place the dirt more or less level instead of putting it all in one place. I didn't notice it, but there was a 2 X 4 railing extended about six foot over the side of the staging'; he did not see the 2 X 4; the truck driver 'moved ahead with his truck with the bed up like that. It hit on this piece and moved the staging about two feet. It did not knock it down, just moved it'; the 2 X 4 was part of the guard rail; 'the bed, the dump portion that carries the dirt was still up'; the truck was 'barely moving'; immediately after the truck hit the 2 X 4 'Mr. Phillips went through the window right alongside of him about three foot above the thing where he was standing, the walk'; he did not 'actually see him go through the window'; at the time the truck struck the 2 X 4 'I was right under the staging. I left immediately, got into the garage area'; 'Q. Prior to the happening of the accident did you see Mr. Phillips up on the scaffolding? A. Well, I knew he was there. Q. I asked you if you saw him. A. I think so, yes. Q. Do you recall exactly where he was on the scaffolding? [A.] Well, he was working on the back of the building putting up the chicken wire'; 'Q. Did you see Mr. Phillips up on the scaffolding just before the bed of the truck hit the 2 by 4? A. Yes; he stopped working and was watching the truck. Q. Was Mr. Phillips standing near this window at that time? A. That is right, standing in back of the building. I don't know just how close to the window he was, but he stopped working and was watching the truck'; 'Q. When the truck turned west where were you? A. I was underneath the staging by the garages. Q. Did you remain underneath the staging all of the subsequent time up until the time of the accident? A. Yes, about five or ten minutes. Q. When had you moved under the staging for the first time? A. When I saw the truck pulling in'; 'Q. * * * So there is no misunderstanding, you went back to stand underneath the staging so that the truck would not hit the staging; is that correct? A. That is correct'; 'Q. You were watching and keeping an eye on the truck all the time it was dumping? A. Yes; there would be no reason to stand there otherwise.' Westenhaver testified that eight to ten loads of dirt a day were dumped on the property; about 8 loads had been dumped on the day of and prior to the accident.

Defendant Green testified he had delivered 4 loads of dirt to the property on the date of and before the accident, and he was operating the only truck in that area on that day.

Defendants' points are that the court erred: (1) in refusing to give instructions on contributory negligence; (2) in admitting evidence of custom; (3) in refusing to permit defendants to impeach plaintiff.

Defendants requested and the court refused to give three instructions on contributory negligence. ¹ It is asserted the evidence compelled the giving of the refused instructions, that there was a clear-cut conflict in the evidence relating to plaintiff's conduct which required the submission of that issue to the jury.

It is of course settled that each party is entitled to have instructions on his theory of the case submitted to the jury in accordance with the pleadings and proof, and it is incumbent on the trial court to instruct on all vital issues involved. Sills v. Los Angeles Transit Lines, 40 Cal.2d 630, 633, 255 P.2d 795; Rideau v. Los Angeles Transit Lines, 124 Cal.App.2d 466, 469, 268 P.2d 772.

Viewing the evidence in the light most favorable to defendants' contention as we must, we are of the opinion there was enough evidence, though slight, to require the giving of the instructions. Plaintiff was an experienced lather. He knew the truck was in the immediate area of the scaffold. It was only 3 feet from the scaffold. On the scaffold he was only 14 feet above the ground. He heard the motor of the truck running, knew the truck was moving, and guessed Green 'was shifting around to dump the load.' According to the testimony of the witness Westenhaver, 'Just before the bed of the truck hit the 2 by 4,' plaintiff 'stopped working and was watching the truck.' This testimony is not a conclusion, as plaintiff argues, but a statement of a fact. Plaintiff testified the scaffold only moved 'one to two feet, about'; it did not fall; no boards fell down. Plaintiff 'lunged'...