Slovick v. James I. Barnes Const. Co.

• Decision Date: 27 June 1956
• Citation: 298 P.2d 923,142 Cal.App.2d 618
• Court: California Court of Appeals Court of Appeals
• Parties: Frank J. SLOVICK, Plaintiff and Respondent, v. JAMES I. BARNES CONSTRUCTION COMPANY, a Co-Partnership, et al., Defendants and Appellants. Civ. 21492.

Page 923

298 P.2d 923

142 Cal.App.2d 618

Frank J. SLOVICK, Plaintiff and Respondent, v. JAMES I. BARNES CONSTRUCTION COMPANY, a Co-Partnership, et al., Defendants and Appellants.

Civ. 21492.

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

June 27, 1956.

Rehearing Denied July 24, 1956.

Hearing Denied Aug. 21, 1956.

Lyndol L. Young, Los Angeles, for appellants.

Victor C. Rose and Alfred M. Klein; Robert P. Dockeray, Los Angeles, of counsel, for respondent.

ASHBURN, Justice.

Appellant James I. Barnes Construction Co. was general contractor for the construction of a cargo transit berth or shed on Pier A at Long Beach Harbor. Certain steel work was sublet to Bethlehem Steel Company, which in turn sublet to Rutherford & Scoubye the installation of reinforcing steel rods. Plaintiff was an iron worker employed by the last named concern and was engaged in their work at the time of the accident which gives rise to this action for personal injuries against the general contractor. Plaintiff recovered a verdict for $17,000, the trial judge denied a motion for new trial, and hence this appeal.

The accident occurred in the area which was to become office headquaters. That portion of the structure had progressed to the point where the steel work of the second floor, called the mezzanine, was in place and the floor had been laid. The roof was not yet constructed, though the girders which would form its lower or horizontal plane were in place. Those girders, or I beams, were laid in a grill pattern, being 5' 7"' apart in one direction, and 10' 8"' in the other. Rutherford & Scoubye's men were engaged in installing the steel in the walls and were working on the mezzanine level. They needed planks to place on top of some saw-horses or jacks which were then on that level. On the roof girders were planks which had been delivered there by Barnes' men for use by the subcontractor. Plaintiff's foreman told him the crew needed some planks, pointing to those on the roof girders, and said to go up there and pass some down to the other men. He climbed up a steel column to the roof level. There a catwalk had been laid across the I beams, obviously for use by the workmen. It consisted of planks laid end to end, with the end of each overlapping the end of the next one. It was but one plank in width, and had no railing. According to prevailing and customary practice the overlapping of the ends should have been at least six inches and of course the overlap should have coincided with the top of an I beam. Plaintiff's task required him to lift a plank, carry it along the catwalk to a place where he could lower it between girders to the floor below. To do this he had to walk sideways for four or five steps, carrying the plank. After he had lowered two of them and when in the process of carrying another, he reached a place on the catwalk which was between two of the beams or girders, had one foot on one plank and the other upon the adjoining plank, when suddenly they tipped up, he fell to the floor below; those two planks and the one he was carrying went down with him. He received serious injuries. This catwalk had been laid by defendant the general contractor, pursuant to contract obligation and in accordance with the custom and expectation of the particular trade. It was furnished for the use of the subcontractors and their men who were obviously defendant's invitees when using the same. Appellant's opening brief says that 'the alleged catwalk did not conform in any respect to the requirements established by practice and custom.'

Appellant argues insufficiency of the evidence to support a finding of negligence on its part. In pursuit of this end counsel contents himself with quoting selected passages of the transcript which are deemed favorable to his contentions. No effort is made to summarize or otherwise present the totality of evidence on the subject. For instance, counsel quotes at length the deposition of plaintiff but ignores his testimony at the trial except certain portions of his cross-examination. Likewise, the discussion of the testimony of Herman Davidson and Ernest Weinhart, fellow employees of plaintiff, consists of selected quotations from the cross-examination of each.

The obligation of an appellant who claims insufficiency of the evidence is thus stated in Owens v. White Memorial Hospital, 138 Cal.App.2d 634, 292 P.2d 288, 290: 'Where the appellant urges the contention of insufficiency of the evidence to sustain the findings of the jury, the rule is, 'Such contention requires defendants to demonstrate that there is no substantial evidence to support the challenged findings.' Nichols v. Mitchell, 32 Cal.2d 598, 600, 197 P.2d 550, 552.' Tesseyman v. Fisher, 113 Cal.App.2d 404, 407, 248 P.2d 471, 473: 'It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact. It is not the province of a reviewing court to search the record in order to ascertain whether it contains evidence that will sustain a contention made by either party to the appeal. [Citing cases.] Where an appellant claims that some particular issue of fact is not sustained by the evidence, he is required to set forth in his brief all of the material evidence on the point and not merely his own evidence. If this is not done, the error assigned is deemed waived.' See, also, Kruckow v. Lesser, 111 Cal.App.2d 198, 200, 244 P.2d 19. There has been no genuine effort to comply with the requisite practice in this instance and the court is not required to make an independent inquiry as to the contents of the rest of the reporter's transcript, which consists of 903 pages.

Respondent's brief sets forth evidence which is sufficient to sustain the finding of negligence on defendant's part. Further than that this court need not go. Upon the record thus presented we find support for the implied finding that defendant was guilty of negligence which was the proximate cause of the accident.

Appellant argues that, assuming it to have constructed the catwalk in the first instance, the evidence shows that changes had been made in it before the day of the accident by persons not in its employ. The argument is built upon Davidson's testimony. He testified that about two days before the accident he was on the roof girders and that he moved two planks because they were not lapped on an I beam and he almost fell; that he fixed it by pushing and pulling the planks into place so they lapped properly on the I beam. from the 'exact spot of the accident.' At from the 'exact sport of the accident.' At about that same time, two or three days before the accident, Ernest Weinhart, another fellow employee, observed that in the vicinity where plaintiff later fell there were several different places where the boards were not overlapping properly; that the end of the plank was not upon the I beam in such places. This catwalk had been laid by defendant about a week before the accident, perhaps only two or three days before that event. Defendant did not undertake to prove that it had been carefully and adequately built, though the evidence was in its keeping. Counsel for appellant apparently contented himself in the trial court, as here, with the contention that plaintiff was not on any catwalk at the time of the accident. It was not incumbent upon plaintiff, in order to raise the inference of negligence, to exclude every possible cause of the accident other than defendant's original faulty construction. Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 444, 447, 247 P.2d 344; Van Horn v. Pacific Refining & Roofing Co., 27 Cal.App. 105, 108-109, 148 P. 951; Biondini v. Amship Corp., 81 Cal.App.2d 751, 767, 185 P.2d 94; Price v. McDonald, 7 Cal.App.2d 77, 81, 45 P.2d 425; Prosser on Res Ipsa Loquitur, 37 Cal.Law Rev. 198. In Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 458, 150 P.2d 436, 439 (an exploding bottle case), it is said: 'It is not necessary, of course, that plaintiff eliminate every remote possibility of injury to the bottle after defendant lost control, and the requirement is satisfied if there is evidence permitting a reasonable inference that it was not accessible to extraneous harmful forces and that it was carefully handled by plaintiff or any third person who may have moved or touched it. Cf. Prosser, supra, p. 300. If such evidence is presented, the question becomes one for the trier of fact (see, e. g., MacPherson v. Canada Dry Ginger Ale, Inc., 129 N.J.L. 365, 29 A.2d 868, 869), and, accordingly, the issue should be submitted to the jury under proper instructions.' ¹

It affirmatively appeared that at two places, some 40 to 50 feet apart, this runway was in an unsafe condition of such nature as to suggest faulty original construction. The catwalk was so located as to be inaccessible to anyone whose business did not require his presence there (plaintiff had to climb a steel column to get to the catwalk), ² and such persons would have no incentive other than that of seeing that it was safe. The condition of such a structure is a fact which is of a continuous nature, certainly so for a period of a week or less in a building that is far from completion. It was unsafe on the day of the accident and on the second or third day before that event, and it is reasoanbly inferable that such was the case when it was built one week (or less) before the catastrophe.

True, it is commonly held that a presumption of continuity of a given condition does not run backward, 18 Cal.Jur.2d § 85, p. 514. Professor Wigmore says, in the footnote on page 413 of 2 Wigmore on Evidence, Third Edition: 'This fallacy that 'presumptions do not run backward' occurs again in Krantz v. Krantz (1933), 211 Wis. 249, 248 N.W. 155. It would be interesting to trace out the origin of that fallacy.' In the text of § 437 on pages 413-414 he says:

'Similar considerations affect the use of subsequent existence as...