PAULY v. KING

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

Robert Carl PAULY, Plaintiff and Appellant, v. Owen KING and Scott King, doing business as Travelodge Company, and O. H. Logan, and E. Lindquist, doing business as General Sheet Metal Company et al. (Amended to read Travelodge Corporation, a corporation, and O. H. Logan), Defendants and Respondents.

Civ. 19766.

Decided: October 28, 1954

Victor C. Rose and Alfred M. Klein, Los Angeles, for appellant. Betts, Ely & Loomis, and James A. Williams, Los Angeles, for respondent Travelodge Corp. Tripp & Callaway, and Hulen C. Callaway, Los Angeles, for respondent O. H. Logan.

Action for damages for personal injuries sustained by plaintiff who fell from the roof of a building. In a trial by jury judgment was for defendants. Plaintiff appeals from the judgment and from the order denying his motion for a new trial.

Appellant contends that the court erred in giving certain instructions; and that appellant was unduly limited in the presentation of his evidence.

In 1950 the Travelodge Corporation, as general contractor, was constructing a two-story apartment building on the north side of Wilshire Boulevard in Los Angeles. The west wing of the building faced south. The first story of said wing extended farther south than the second story, so that the flat surface of the roof of the first story formed a deck or balcony about 14 feet wide along the south wall of the second story. Travelodge employed a roofing company to put the roof on the building. Plaintiff was an employee of the roofing company. Defendant Logan operated a sheet metal business. Between May 23 and June 7, 1950, Logan, as a subcontractor, installed sheet metal flashing along the edge of the roof (deck) of the first story. The flashing extended outward and beyond the edge of the roof about 5 1/2 inches. A brick veneer wall, which would have supported the flashing, was to be installed later under the flashing. The brick veneer was to be 4 inches thick, and there was to be a 1-inch air space between the veneer and the wall sheathing. The flashing, after the brick veneer was installed, would have extended about one-half inch beyond the surface of the veneer. On June 7, 1950, before the veneer had been installed, plaintiff and his foreman, who was also an employee of the roofing company, went to the building in a truck. The truck was parked on Wilshire Boulevard at a place in front of, and about 35 feet from, the west wing. Plaintiff then carried rolls of roofing paper and other roofing materials from the truck to the deck by walking through a doorway below the deck (in the south wall of the first story) into the building and then up a stairway to the deck or roof. Plaintiff then started to lay or install the paper on the roof. While he was attempting to place a strip of paper in position he put his right foot on the unsupported metal flashing, the flashing bent downward and plaintiff fell to the ground.

Plaintiff testified in part as follows: He had been in the roofing business about 25 years, and 80 per cent of that time he had also done flashing work. He was 48 years of age at the time of the accident. About fifteen minutes elapsed from the time the truck was parked to the time he got the roofing material up to the roof. The accident occurred about twenty minutes after he arrived. When he arrived he got out of the truck, unhooked the tar pot and fired it up. He then got on the truck, handed his foreman a ladder, opened five or six sacks of asphalt, set about five rolls of paper toward one side of the truck and got off the truck. The rolls of paper were three feet wide and weighed sixty pounds each. He put a roll of paper on his shoulder and as he walked toward the building he was looking toward the door. The ground in his direct path of travel was rough and he was watching where he was going. In order to get through the doorway and into the building he had to walk up a plank which was about ten feet long and one foot wide. Then he went up a stairway to the deck and set the roll of paper on the deck. He made three more similar trips from the truck to the deck. On two of the trips he carried a roll of paper on his shoulder, and on the last trip he carried a tar bucket which weighed about twenty pounds and a mop with handle about six feet long. Then he started laying the paper on the roof, from west to east, with the south edge of the paper about an inch on the flashing along the south side of the roof. He first placed the paper at the southwest corner of the roof, drove a nail through the end of the paper into the roof, then unrolled the paper in an easterly direction to a point near the east edge of the roof. Then he nailed the strip of paper to the roof and cut the strip from the roll. Then he walked back along the north edge of the strip of paper to the west end of the roof and reached down to take hold of the paper and line it up with the flashing along the south edge of the roof. As he was reaching down he placed his right foot on the flashing, but his right knee forward, raised his left heel off the floor, and then the metal gave way and he fell to the ground. He looked up and observed that the flashing, at the point where his foot had been, was bent down. The flashing was not bent before he fell. He testified further that flashing is considered a part of the roof—you cannot ‘roof’ until the flashing is in. When he was laying the paper he observed that there was flashing along the south and west edges of the deck. He did not make any observation to determine whether the flashing had been secured to the roof, but he assumed it was nailed down. He did not know that the outside wall of the building had not been finished, and he did not see the walls on that day. He assumed there was a veneer wall under the flashing. The installation of the flashing, extending 5 1/2 inches from the edge of the roof with no support underneath it, does not conform to the accepted standard practice—it has not been done in years. What he did in laying the paper prior to the accident was the standard practice for roofers in this area. While he was at the truck prior to the accident, he did not ‘look up’ at the place where he was going to work. While he was by the truck after the accident, he saw that the flashing extended out.

The roofing foreman, called as a witness by plaintiff testified that his orders were on a work ticket. When he arrived at the building he carried a roll of felt to the deck. The ground over which he walked had not been leveled and he was looking straight ahead. While he was carrying the roll he was watching where he was walking and he did not notice whether the flashing had been installed until he was on the deck. He could have seen the flashing from the street if he had been looking for it. He testified further that he had been in the roofing trade twenty years. He saw plaintiff demonstrate in court the way he laid the paper and the way he stood at the time of the accident. The demonstration was in conformance with the standard practice of roofers in this area in the construction business.

Another witness, called by plaintiff, testified that he is employed as a safety engineer by the State of California and that he has a license as a general building contractor. He was asked a hypothetical question that embodied assumed facts which were justified by the evidence. In reply thereto he testified that in his opinion the ‘flashing should have been supported the same as any other portion of the roof, to support the weight of the persons that were necessarily to be on the roof for working.’ On cross-examination he testified that there are many potential dangers around construction work; the reason for supporting the flashing is generally to keep the flashing from being distorted during construction work; generally a roofer works all over the roof and also on the flashing.

Defendant Logan, called as a witness by plaintiff under section 2055 of the Code of Civil Procedure, testified that he and his employee, also a sheet metal worker, installed the flashing here involved. They started the work when the carpenter foreman of Travelodge told them to come over to the job. He (witness) saw the blueprints but he took his instructions (regarding the kind of flashing to install) from said foreman. The flashing was installed so as to extend three-quarters of an inch past the brick veneer wall when finished.

The carpenter foreman, called as a witness by plaintiff under section 2055 of the Code of Civil Procedure, testified that when the superintendent of the job was not present he (witness) was in full charge. Everything he did on the job was either in accordance with directions on the blueprints or specifications, or at the direction of the superintendent. The sequence in which the sheet metal work, roofing, or veneer wall facing was to be done was not provided in the plans or specifications. The sequence depends on directions, inspection of the rough frame work by the building department, and whether the wall is structural or just facing. He told Logan when to put the flashing on. After the flashing was completed he (witness) called in the roofers. The veneer wall had not been put up at the time of the accident because he was directed not to put it up by his superintendent. At one time the superintendent stated that he wanted the brick facing left off until the plasterers and roofers were through so that the facing would not get marked. At the time of the accident the ground was rough from the street to the entrance of the building. It is the custom and practice (in the industry) to provide a solid surface sufficient to bear a roofer's weight in a place where a roofer reasonable would be expected to stand to do his duties.

A witness, called by defendant Logan, testified that he has been a roofing contractor since 1930. There is no practice among roofers which requires a roofer to stand in a given place in order to do his work. On cross-examination he testified that he did not know about any custom to support a flashing where roofers are to work after the flashing is in.

Another witness, called by defendant Logan, testified that he has been a construction engineer for thiry years in Los Angeles County. There is no practice in this community as to where a roofer should stand while working on a roof which has the type of flashing that was installed herein.

Appellant contends that the court erred in giving the following instruction: ‘There is nothing inherently dangerous in doing roofing work on a flat deck surface, such as that which was here involved, and therefore it was not encumbent upon either of the defendants to advise plaintiff concerning any apparent condition or conditions which, being plainly observable, would advise a reasonable and prudent man to make inquiry concerning any probable dangers which might be involved in their use. The question of whether or not the conditions existing herein were or were not plainly observable to a reasonable and prudent person is one of fact for the jury to determine from the evidence in this case in the light of the Court's instructions.’ The first sentence of the instruction was requested by defendant Travelodge, but the trial judge modified the requested instruction by adding thereto the second or last sentence.

Appellant argues that the instruction took from the jury the determination of disputed facts, in that, it told the jury in effect that there was no latent or concealed defect on the deck surface here involved; and it told the jury that the condition of the flashing was plainly observable, there was no duty on the part of defendants to warn appellant of any danger, and the appellant was not working in a dangerous place. He also argues that said instruction was in conflict with and nullified certain instructions requested by appellant which were properly given. Those instructions were to the effect: (1) If there was a latent and dangerous condition upon the roof of which plaintiff was not aware, it was the duty of Travelodge to warn plaintiff. (2) A workman may recover damages resulting from a latent defect provided that the general contractor who maintained the defect knew or should have known of the defect and failed to warn the workman. (3) Even if an alleged defect was observable, the jury must determine whether it was a want of ordinary care on the part of plaintiff not to have inspected the flashing before stepping on it; and if plaintiff acted like an ordinary prudent person under similar circumstances, that is all that is required of him since the law does not require exceptional care or foresight.

A question of fact herein was whether the appellant, in failing to see the condition of the flashing, failed to exercise ordinary care. The first sentence of said instruction refers specifically to the roof involved here, and then states that it was not incumbent on defendants to advise plaintiff of any condition ‘which, being plainly observable,’ would advise a reasonable man to make inquiry concerning danger. A principal point in the trial was whether the condition of the flashing was observable or concealed. During the trial there were many questions pertaining to that point. There were questions as to whether the condition was observable from a position on the roof or from a position below the roof. In view of the emphasis throughout the trial upon the point regarding observability, the effect of the use of the words, ‘which, being plainly observable,’ was to advise the jury that the condition of the flashing was plainly observable. The second or last sentence of said instruction, which the trial judge added as a modification of the requested instruction (the first sentence), did not cure the error in the first sentence. Although the modification stated that the question as to whether the conditions were plainly observable was one of fact for the jury, the answer to the question had been indicated in the first sentence. In Clarke v. Volpa Brothers, 51 Cal.App.2d 173, at page 179, 124 P.2d 377, at page 380, it was said in quoting from California Jurisprudence: “The province of the jury is invaded where an instruction assumes the existence of a fact * * * with respect to which there is a conflict of evidence, and any error in this respect is not, it has been held, cured by other charges which submit to the jury the question, whether such fact exists.” In the present case there was evidence that the unsupported condition of the flashing was not observable from the top of the roof; that it was observable from a position below the roof; that while appellant was below the roof he was carrying rolls of roofing paper and other roofing materials from the truck into the house, and in so doing he walked over rough ground and along a 1-foot-wide plank; and that, according to appellant, it was not the custom to leave flashing unsupported. It was a question of fact whether, in the circumstances under which appellant was performing his duties, the condition of the flashing should have been observed by him. It was prejudicial error to give said instruction.

Defendant Logan who installed the flashing was not guilty of negligence unless he violated some duty he owed to plaintiff. He installed the flashing in accordance with the specifications and as directed by the general contractor. There was no defect with respect to material or workmanship. If there was a dangerous condition it was due to the failure of the contractor to install the brick veneer which would support the flashing. Logan had no duty to install the brick. He did not know when the roofers were to go to work and did not know that the brick work would not be done before work was started on the roof. The contractor directed the roofers when to do their work. If there was a duty to warn them of the absence of support for the flashing, it was the duty of the contractor. Any dangerous condition that existed was due to the actions of the contractor. It does not appear that Logan had any duty either to support the flashing or to warn the roofers. Since it appears that there was no liability on the part of defendant Logan, the judgment rendered in his favor should not be reversed, even though the said instruction was erroneous.

By reason of the above conclusions, it is not necessary to discuss other contentions.

The judgment is reversed as to defendant Travelodge Corporation; and it is affirmed as to defendant Logan. The purported appeal from the order denying the motion for a new trial is dismissed.

PARKER WOOD, Justice.

SHINN, P. J., and VALLÉE, J., concur.