Opinion
11-30-1955
Maurlce Wilson ALLEN, Plaintiff and Respondent, v. JIM RUBY CONSTRUCTION COMPANY, a California corporation et al., Defendant and Appellant.* Civ. 20937.
Schell, Delamer & Loring, Louis M. Welsh, Los Angeles, for appellant. Levy, Russell & De Roy, George De Roy and Jack Levine, Los Angeles, for respondent.
Maurlce Wilson ALLEN, Plaintiff and Respondent,
v.
JIM RUBY CONSTRUCTION COMPANY, a California corporation et al., Defendant and Appellant.*
Nov. 30, 1955.
Rehearing Granted Dec. 27, 1955.
Schell, Delamer & Loring, Louis M. Welsh, Los Angeles, for appellant.
Levy, Russell & De Roy, George De Roy and Jack Levine, Los Angeles, for respondent.
SHINN, Presiding Justice.
In this action for personal injuries the complaint alleged that Jim Ruby Construction Company (a fictitious name under which Jim Ruby was doing business), while doing construction work for Freuhauf Trailer Company upon the latter's property caused an opening, hole, and excavation to be so carelessly and negligently left open and unguarded that plaintiff, while lawfully on the premises, fell into said opening and received injuries; defendant answered denying the material allegations of the complaint. The cause was tried to a jury and verdict and judgment were in favor of plaintiff for $6,000; defendant appeals from the judgment.
There was evidence of the following facts. In the course of the work in which defendant was engaged in was necessary to make an excavation which involved a breaking up of concrete, the cutting off and removal of steel rods and the removal of all material necessary in the excavation of a pit. Removal of the concrete was done by Air Power Tools Company, subcontractor of defendant, and it had been completed several days before the accident occurred. In this work the concrete was broken up, rods were cut, and the material was thrown out of the pit by hand onto the ground where it was picked up by hand and thrown into trucks to be hauled away. Defendant's contract was not completed; he still had to lower the pit to a uniform depth of 10 feet and line it with concrete. At the time of plaintiff's accident there was in existence an excavation 33 feet by 11 feet, which was at ground level at the west end and graduated to a depth of 9 feet at the east end. Plaintiff was an employee of Freuhauf, assembling trailers, and had come to work about 4 p. m., November 2, 1951, while some of defendant's employees were still at the location. Plaintiff was working on the northerly side of the pit about 10 feet distant therefrom when he decided to walk past the pit on the north side to a washroom. As he proceeded he stumbled on a steel bar or rod 3 or 4 feet long, which was lying on the ground 4 or 5 feet north of the pit and about midway between the easterly and westerly ends of the pit. His foot struck the bar; he lost his balance and went forward into the pit. There was no barrier around the pit. No witness observed plaintiff's fall into the pit. Plaintiff had observed work on the pit for about a week, had looked into it and knew how deep it was. He testified that he believed the rod was a reinforcement rod; it had ridges on it; it was 3 or 4 feet long and maybe an inch thick. As he stumbled he did his best to light on his feet in the bottom of the pit and he did light on his feet but his legs doubled under him. There was a pile of dirt across the west end of the pit; there were some air hoses lying on the ground and some electric cords, which were not closer than 6 to 10 feet from the pit, and these were used in Freuhauf's work; he had not seen the iron rod before; he saw it from some distance after he was assisted and 'hobbled' out of the hole but not before; he didn't examine the rod to see what it was. He glanced at it after he came out of the hole. He was in excruciating pain at the time. He was not sure whether the rod was something that was used by the Freuhauf people; it could have been, but he did not know.
As we have seen, the complaint charged negligence of defendant in failing to maintain a barricade around the pit. In plaintiff's brief it is argued that this was negligence. We shall dispose of this contention after we have discussed the claim of negligence in allowing the rod to lay on the ground.
The briefs argue the question whether there was sufficient evidence that defendant was guilty of a breach of duty. Plaintiff argues (1) it could have been inferred that the rod had been left by workmen of defendant or his subcontractor, since plaintiff testified it had ridges on it, and presumably was the type of rod the subcontractor had been removing with the concrete; (2) if this were true defendant was chargeable with knowledge that the rod was there; (3) if some one else placed the rod there it could have been inferred that it had been there long enough for defendant to discover it; (4) as a necessary conclusion defendant was negligent in failing to remove the rod.
It is unnecessary to notice at length defendant's replies to these arguments. It is sufficient to state that it is contended that plaintiff's version of the accident was incredible because he could not have stumbled into the pit and yet landed on his feet; defendant's witness McSweeney, Freuhauf employee and lead man on plaintiff's shift, testified that plaintiff received his injuries while he and fellow employees Montes and Bustamente were jumping in the pit from the shallow end into sand toward the deeper end; also there was no evidence from which it could have been inferred that defendant was responsible for the placing of the rod on the ground or that he had actual or constructive knowledge of its presence. Although the defendant's arguments are somewhat impressive, it is unnecessary to discuss them.
Even if it be assumed that the presence of the rod on the ground created a dangerous condition on the premises and that defendant knew or in the exercise of ordinary care would have known of that condition, those facts did not impose upon him any duty toward plaintiff to remedy the condition or to give warning of it. Both in his complaint and in his brief plaintiff assumes that he was an invitee of defendant, although he mentions no fact indicative of the existence of that relationship. His sole theory of the case is illustrated by his citation of Louie v. Hagstrom's Food Stores, 81 Cal.App.2d 601, 184 P.2d 708, which he says is a case exactly in point. In that case the defendant, operating a food market, was held to a high quantum of care to keep his premises in a safe condition for his customers and chargeable with knowledge of an unsafe condition. There was no such relationship between plaintiff and defendant. It may be granted that defendant was an occupier of the portion of the premises he was using in the course of his work and as such had a duty toward those who might come upon the property, but the assumption that plaintiff was defendant's invitee is clearly in error. To be sure he was an invitee of Freuhauf, his employer, and it is not questioned that he had a right to traverse the area around the pit, inasmuch as he had not been forbidden to use it, and his presence there was to be expected as incidental to his work. While plaintiff was an invitee of Freuhauf, as to Ruby he was, at most, a bare licensee. While both Freuhauf and Ruby had duties toward plaintiff they were not the same because the relationships were different. Plaintiff's presence in the vicinity of the pit was of no concern to defendant. They had no business together. Plaintiff was on a mission personal to himself as he walked beside the pit and in suffering him to be there defendant assumed no duty toward him except to refrain from causing him injury by wilful or wanton conduct or by actions which would constitute active negligence. There is, of course, no contention there was a breach of any such duty. The sole claim is that defendant tolerated an unsafe condition on the premises. The law with respect to licensees is '* * * where a person goes upon the premises of another without invitation and simply as a bare licensee, and the owner of the property passively acquiesces in his coming, if an injury is sustained by reason of a mere defect in the premises, the owner is not liable for negligence for such person has taken all the risk upon himself." Fisher v. General Petroleum Corp., 123 Cal.App.2d 770, 777, 778, 267 P.2d 841, 845; see, also, Koppelman v. Ambassador Hotel Co., 35 Cal.App.2d 537, 540, 96 P.2d 196; Oettinger v. Stewart, 24 Cal.2d 133, 139, 148 P.2d 19, 156 A.L.R. 1221; Saba v. Jacobs, 130 Cal.App.2d 717, 279 P.2d 826; Palmquist v. Mercer, 43 Cal.2d 92, 272 P.2d 26.
The facts previously stated suggest the further question whether defendant had nay duty to keep the premises surrounding the pit free from material such as broken concrete, pieces of metal rods and earth that was removed from the pit. Was it his duty to clean up the premises whenever his workmen quit for the day or did he have a right to assume that Freuhauf employees would use the premises as they found them, knowing that the work was going on and uncompleted? We mention the question only to remark that in our discussion we do not assume that defendant would have had a duty even toward a business invitee to keep the premises clean and safe. As to plaintiff the question is not presented.
The claim of negligence in failing to barricade the pit falls for the reason previously stated. An additional ground of untenability would be that plaintiff had actual knowledge of the existence of the pit and therefore could not complain of the absence of a barrier as a warning of its presence.
It is unnecessary to discuss other contentions of defendant.
The judgment is reversed with instructions to enter judgment for defendant.
PARKER WOOD, J., and NOURSE, Judge pro tem., concur. --------------- * Opinion vacated 291 P.2d 991.