( Id . at p. 726, 344 P.2d 307.) In Schumann v. C. R. Reichel Engineering Co. (1960) 187 Cal.App.2d 309, 9 Cal.Rptr. 486 ( Schumann ), plaintiff lived as a tenant on the second floor of a building. Outside her kitchen and bedroom windows there was a wooden platform with open spaces in its flooring and a 32½ tall railing.
Since defendants were negligent in failing to provide guardrails, and plaintiff was seen on the scaffold waiting for his paint pot to be filled two minutes before he was seen falling, the implied finding of the jury that the negligence of each defendant was a proximate cause of plaintiff's injuries is sustained. ( Burdette v. Rollefson Construction Co., 52 Cal.2d 720, 726 [ 344 P.2d 307]; Schumann v. C.R. Reichel Engineering Co., 187 Cal.App.2d 309, 317-318 [ 9 Cal.Rptr. 486]. Also see Hall v. Paul Bunyan Lumber Co., 177 Cal.App.2d 761, 765 [ 2 Cal.Rptr. 519].) [16a] The fifth assignment of error is that plaintiff was contributively negligent as a matter of law.
In Schumann v. C. R. Reichel Engineering Co. (1960) 187 Cal.App.2d 309 (Schumann), plaintiff lived as a tenant on the second floor of a building. Outside her kitchen and bedroom windows there was a wooden platform with open spaces in its flooring and a 32½ tall railing.
But it has consistently been held, at least where the safety order does not indicate the contrary, that persons consensually on the premises to which a safety order applies also come within its protection. Thus it has been held that coming within such protection are business invitees ( Porter v. Montgomery Ward Co., supra; McKeon v. Lissner, 193 Cal. 297 [ 223 P. 965]; Ross v. Kirby, 251 Cal.App.2d 267 [ 59 Cal.Rptr. 601]; Wiese v. Rainville, 173 Cal.App.2d 496 [ 343 P.2d 643]); tenants ( Halliday v. Greene, 244 Cal.App.2d 482 [ 53 Cal.Rptr. 267]; Schumann v. C.R. Reichel Engineering Co., 187 Cal.App.2d 309 [ 9 Cal.Rptr. 486]; Longway v. McCall, 181 Cal.App.2d 723 [ 5 Cal.Rptr. 818]); insurance inspectors ( Gaw v. McKanna, supra, 228 Cal.App.2d 348); son of employee ( Tesche v. Best Concrete Products, Inc., 160 Cal.App.2d 256 [ 325 P.2d 150]); delivery men ( Nungaray v. Pleasant Valley etc. Assn., 142 Cal.App.2d 653 [ 300 P.2d 285]; Pierson v. Holly Sugar Corp., 107 Cal.App.2d 298 [ 237 P.2d 28]); and school children ( Lehmann v. L.A. City Board of Education, 154 Cal.App.2d 256 [ 316 P.2d 55]). We observe that safety order number 1632 neither expressly, nor by implication, limits its protection to workmen.
It has been uniformly held, however, that the superior court, as distinguished from a municipal court, and the reviewing court on appeal cannot take judicial notice of a municipal ordinance. (Schumann v. C. R. Reichel Engineering Co. (1960) 187 Cal.App.2d 309, 315, 9 Cal.Rptr. 486; Johnson v. A. Schilling & Co. (1959) 170 Cal.App.2d 318, 325, 339 P.2d 139; Markwalder v. Leonhard (1957) 152 Cal.App.2d 254, 259, 313 P.2d 200; Higbee v. La Salle (1956) 145 Cal.App.2d 737, 739, 303 P.2d 65; Rau v. Redwood City Woman's Club, supra, 111 Cal.App.2d 546, 552, 245 P.2d 12; cf. Evidence Code § 452, subd. (b) and Legislative Committee Comment thereon (Assembly J., Apr. 6, 1965).) At oral argument it was conceded that the General Industrial Safety Orders, encompassing section 3234, dealing with treads and risers, as found in Article 3 of Group 1, Subchapter 7 of the Chapter 4 of Title 8 of the Administrative Code were not applicable.
The court analogized to cases in which the plaintiffs could not remember their falls, but the circumstantial evidence led to reasonable and probable inferences that each had fallen from a height due to the absence of adequate barriers that would have restrained them. (Kaney, supra, 74 Cal.App.5th at p. 219, citing Burdette v. Rollefson Construction Co. (1959) 52 Cal.2d 720, Schumann v. C.R. Reichel Engineering Co. (1960) 187 Cal.App.2d 309.) In the Kaney court's view, "a trier of fact could draw a reasonable and probable inference in the plaintiff's favor that she fell on the stairs based on her testimony that she remembers being on the stairs and waking up on the floor in pain."
In Markwalder v. Leonhard, 152 Cal.App.2d 254, 258, 313 P.2d 200, 203, it is said: 'It has been held as a general rule that building code provisions are not retroactive.' (See also Schumann v. C. R. Reichel Engineering Co., 187 Cal.App.2d 309, 314, 9 Cal.Rptr. 486.) The main portion of the code purports to apply to all buildings in the city, irrespective of whether they have conformed with all previous building laws at the time they were constructed.
Von Rohr v. Neely, 76 Cal.App.2d 713, 715, 173 P.2d 828, 829: 'A thing is appurtenant to something else when it stands in the relation of an incident to and is necessarily connected with the use and enjoyment of the principal [citations] and agreeing in its nature and quality with the thing to which it is appendant or appurtenant. * * * Nothing passes by the word 'appurtenances' except such rights or privileges as are strictly necessary and essential to the proper enjoyment of the estate granted, and a mere convenience is not sufficient to create such a right or easement.' See also, Civ.Code, § 662; Owsley v. Whelan Drug Co., 83 Cal.App.2d 454, 457, 189 P.2d 50; Schumann v. C. R. Reichel Engineering Co., 187 Cal.App.2d 309, 9 Cal.Rptr. 486; 28 C.J.S. Easements § 4c, p. 636. The right here under discussion, receipt from lessee of money equivalent to a proportionate part of not less than a one-eighth royalty, is in no way a right whose enjoyment is essential or beneficial to the owner's land.