Scott v. John E. Branagh and Son

• Decision Date: 18 May 1965
• Citation: 234 Cal.App.2d 435,44 Cal.Rptr. 384
• Court: California Court of Appeals Court of Appeals
• Parties: Clifford R. SCOTT, Plaintiff and Appellant, industrial indemnity Co., a corporation, intervener and Appellant, v. JOHN E. BRANAGH AND SON, Defendant and Respondent. Civ. 21552.

Page 384

44 Cal.Rptr. 384

234 Cal.App.2d 435

Clifford R. SCOTT, Plaintiff and Appellant, industrial indemnity Co., a corporation, intervener and Appellant, v. JOHN E. BRANAGH AND SON, Defendant and Respondent.

Civ. 21552.

District Court of Appeal, First District, Division 2, California.

May 18, 1965.

Hearing Denied July 14, 1965.

J. Adrian Palmquist, Alameda, Alfred A. Affinito, Pittsburg, Francis T. Cornish, Alturas, for appellant.

Weinmann, Rode, Burnhill & Moffitt, Oakland, for respondents. Cyril Viadro, San Francisco, of counsel.

SHOEMAKER, Presiding Justice.

This is an action by plaintiff Clifford Scott for personal injuries suffered by him in the construction of a building on the Berkeley Campus of the University of California by defendant general contractor John E. Branagh and Son. The contract for the iron work was sublet to plaintiff's employer, Camblin Steel Service Co., Inc. While engaged in his employment, plaintiff fell from the roof of the building, allegedly as the result of the negligence of the defendant in the construction of the building.

The action was defended on the grounds (1) that defendant was not negligent, (2) that plaintiff was contributorily negligent, and (3) that plaintiff assumed the risk.

Industrial Indemnity Co., the compensation carrier of plaintiff's employer, filed a complaint in intervention to recover the sums it had paid plaintiff. Defendant contractor's answer raised the affirmative defense of negligence on the part of plaintiff's employer.

After all the evidence was in, defendant moved for a directed verdict, which was granted, and judgment thereafter was entered in its favor and against both plaintiffs. Plaintiffs have appealed therefrom.

The granting of a directed verdict may be sustained only when it can be said as a matter of law that no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it or the trial court to set it aside as a matter of law. (Herrera v. Southern Pacific Co. (1957) 155 Cal.App.2d 781, 783, 318 P.2d 784; In re Estate of Lances (1932) 216 Cal. 397, 400, 14 P.2d 768.)

We therefore recite the evidence, which is substantially without conflict. The accident occurred September 12, 1958. The building involved consisted of three floors and a roof. The concrete roof slab had been poured some time prior to the accident, and on September 12 the wooden forms, which had served as protective barricades around the perimeter of the roof, had been removed. Transportation to the roof was by a hoist which could be used to raise or lower concrete, and a Chicago boom, which could be used to raise or lower small amounts of reinforcing steel. The east edge of the roof, immediately adjacent to the hoist and boom, was equipped with a handrail some 20 feet in length. In order to operate the boom, it was necessary to have at least one man on the ground and one man on the roof.

Shortly before noon on the day of the accident, plaintiff Scott's foreman instructed him to go up on the roof and throw down some iron which had been left on the roof and was needed below.

Scott was a steelworker of several years' experience who had frequently had occasion to work in high places. At the trial he was unable to recall any of the details pertaining to the accident and remembered only that he had been instructed to go to the roof and that he had thrown a few short pieces of steel off the roof prior to falling. He stated that it was accepted procedure to 'throw' or 'toss' steel from the roof, and that he had seen other steelworkers do it.

Due to the nature of Scott's testimony and the absence of any eyewitnesses at the scene, the only evidence as to the precise manner in which the accident occurred consisted of Scott's deposition, which had been taken October 14, 1960. He therein stated that he had found the steel lying in a pile on the roof and had carried pieces of it a distance of some 20 or 25 feet to a point two feet from the south edge of the roof. He knew that there was a 50-foot drop from the roof, that there was no guardrail on the south edge of the roof, and that it was 'just a straight shot to the edge.' He was also aware of the guardrails near the hoist, and admitted that it was possible to throw steel over guardrails and that he himself had done so a few days before the accident. He elected to throw the steel from the south edge of the roof because it was located closest to the spot where the steel was piled and he did not want to walk all the way across the roof. He had thrown steel from a roof on many prior occasions. His foreman had not instructed him to throw the steel from any particular point on the roof.

Immediately prior to his fall, Scott had made one or more trips from the spot where the steel was piled to the south edge of the roof. He carried the steel on his shoulder, proceeded to a point which was near enough to the edge to enable him to look down, and threw the steel off the roof. He did not push the steel from the roof as he was afraid of hitting someone. His fall occurred as he approached the edge of the roof with a piece of steel some 20 or 30 feet in length with right angle hooks at the ends. He did not recall slipping or sliding and stated that he had no trouble standing. There were no distractions such as anyone calling to him from below. As he stood near the edge of the roof and prepared to throw the steel, it got caught in his pants leg and he fell or was pulled from the roof.

Scott's foreman, one Beaty, testified that Scott had worked on the roof for several days prior to the accident. Beaty and his crew had used the boom prior to the accident to raise steel of the size carried by Scott to the roof. He stated that it was accepted procedure to push rather than throw pieces of steel from the roof. If the steel is carried on a worker's shoulder and thrown from that position, there is a danger that the hook on the steel will catch the worker's clothing. He did not tell Scott not to use the boom to lower the steel. However, he expected Scott to push the steel from the edge of the roof, a procedure which was proper. When he had last seen the leftover steel on the roof, it was piled closest to the east edge of the roof. He also stated, however, that there were trucks, saws and other power tools set up on the roadway below the east edge of the roof.

There was considerable conflicting expert testimony as to whether or not defendant was required, by custom and usage or by certain construction safety orders of the Division of Industrial Safety, to have provided a guardrail around the perimeter of the roof.

The court, in granting the motion for a directed verdict, stated that although it did not consider that the safety orders in question required defendant to surround the roof with a railing, the evidence was sufficient to support a finding that custom, practice and due care required the installation of such a railing. The court nevertheless concluded that the unguarded roof was as a matter of law an obvious danger which plaintiff Scott should have observed in the exercise of reasonable care and that he was accordingly precluded from recovery. With this conclusion we do not agree, for the following reasons.

It is the settled law of this state that an employee of a subcontractor is an invitee of the general contractor. (Florez v. Groom Development Co. (1959) 53 Cal.2d 347, 354, 1 Cal.Rptr. 840, 348 P.2d 200; see cases collected 35 Cal.Jur.2d, § 147, p. 633.) The general contractor is therefore under a duty to use ordinary care to provide a safe place for employees of a subcontractor to work, to warn such employees of a danger which is known to the general contractor or discoverable in the exercise of ordinary care, or otherwise to protect such employees from injury and to avoid exposing them to injury on account of dangerous conditions. (Revels v. Southern Cal. Edison Co. (1952) 113 Cal.App.2d 673, 678, 248 P.2d 986; Raich v. Aldon Construction Co. (1954) 129 Cal.App.2d 278, 285, 276 P.2d 822.) The general contractor is not an insurer of safety, however, and he is not liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care. (Florez v. Groom Development Co., supra, 53 Cal.2d at p. 355, 1 Cal.Rptr. 840, 348 P.2d 200; Pauly v. King (1955) 44 Cal.2d 649, 653, 284 P.2d 487; Knight v. Contracting Engineers Co. (1961) 194 Cal.App.2d 435, 445, 15 Cal.Rptr. 194; Brown...