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

Louis J. PHILLIPS, Plaintiff and Respondent, v. G. L. TRUMAN EXCAVATION COMPANY, a corporation, and Melvin T. Green, Defendants and Appellants.*

Civ. 24146.

Decided: November 14, 1960

Crider, Tilson & Ruppe ́and Henry E. Kappler, Los Angeles, for appellants. Alvin E. Honoroff and Bernard Echt, Los Angeles, for respondent.

Appeal by defendants from a judgment for plaintiff entered on a unanimous jury verdict in an action for damages for personal injuries.

On April 19, 1957 plaintiff, a lather, was working on a scaffold at the second-floor level of a 2-story apartment building under construction. A dump truck owned by defendant Truman Excavation Company was operated by its employee, defendant Green. The raised bed of the dump truck struck a 2 x 4 which protruded from the scaffold at the second-floor level. Plaintiff lunged through a window, landed on his head, striking the subflooring in the building.

Plaintiff was working alone on the scaffold at the rear of the building. He was under the eaves, nailing stucco wire to the building. The scaffold was in two levels: one level 8 feet, the other 12 feet, above the ground. It was made of vertical 2 x 4 uprights attached to the building by nailed steel braces. Two horizontal planks were affixed to the uprights. There was a railing of 2 x 4's bolted to steel frames. There were 2 x 12 walking planks on the scaffold which was 20 to 22 inches wide, and projected about 2 feet out from the building. A part of the 2 x 4 railing on the second-floor level protruded about 6 feet south of the southwest corner of the scaffold. There was a window in the second story of the building about 4 feet from the southwest corner. Plaintiff had gone to work on the job while the scaffold was under construction. He had been on the job about a week. Thereafter he worked ‘all around the top of the building.’

The accident occurred about 3:45 p. m. on April 19, 1957. Defendant Green was operating a dump truck, delivering dirt to the job. He drove into the rear yard and backed the truck in an easterly direction, stopping parallel to the south side of the building. He raised the bed of the truck and commenced unloading. He did not get all of the dirt out and he pulled forward a couple of feet with the bed of the truck elevated. As he did so, the truck struck the protruding 2 x 4. No dirt was dumped under the scaffold.

Plaintiff testified: about 5 minutes before the accident he glanced down and saw the truck with a load of dirt in it; it was stationary; he did not see it after that; ‘I was nailing the wire down and not paying any attention to anything but my own work, and all of a sudden the whole scaffold gave a terrific jerk and, well, for the moment—for the moment I was in fear of my life’; ‘I was in fear of falling off the scaffold the jerk was so terrific’; ‘I went through the window’; ‘I lunged through it’; ‘I went through sideways with my left side down’; he landed on his head on the subflooring inside; he wanted to get off the scaffold because ‘I was in fear of falling to the ground’; before the accident he did not see the 2 x 4 that protruded from the scaffold; he got onto the scaffold by climbing out the window; there was no other way to get to the second level of the scaffold; he never saw the truck move; when he glanced down at it the bed was down; ‘Q. Did you ever hear the truck in operation before the scaffolding gave a jerk? A. I heard it, heard a motor running down below me but—Q. Could you identify the noise of the motor when you heard it running as moving? A. Well, you mean when my back was to the truck? Q. Yes. A. Yes, it was moving. I mean I guess he was shifting around to dump the load, but I never paid any attention. I figured he was safe enough away from the scaffold and I went back about my business, but I wasn't watching. I was working with my work’; ‘Q. Could you tell us when you first saw this truck how far the right side of the truck was from the scaffolding? A. Well, as far as I can remember it was a good safe distance from the scaffold’; at the time the scaffold jerked, he was facing the window; the scaffold moved ‘one to two feet, about’; it did not fall; no boards fell down. There was evidence that a couple of metal tie-ins of the scaffold were loose by the impact of the truck.

Charles Westenhaver, called by defendants, testified by deposition: he was a partner in Fleetwood Housing, which was constructing the building; he witnessed the accident; ‘I was directing the truck that pulled in this driveway and backed over under the staging her alongside of the staging’; ‘[t]he truck pulled into the back of the other building straight ahead, then backed up behind this building’; ‘I stepped underneath the staging where I could see the truck driver and motioned him to keep him away from the staging’; the staging is the scaffold; the truck ‘was a large dump truck’; ‘I didn't say anything to the truck driver. He didn't say anything to me but I was underneath the staging for that purpose, in case he got anywheres near it’; the right-hand side of the truck backed ‘about three foot away from the staging’; ‘this man Phillips was on the top staging putting up chicken wire in preparation to putting the final coat of plaster on, and he was right by a window very similar to that, only it was on the back. The staging was about the level of the window where his feet was, about the floor level’; ‘[t]he truck backed up, lifted its dump and then started to move forward to place the dirt more or less level instead of putting it all in one place. I didn't notice it, but there was a 2 x 4 railing extended about six foot over the side of the staging’; he did not see the 2 x 4; the truck driver ‘moved ahead with his truck with the bed up like that. It hit on this piece and moved the staging about two feet. It did not knock it down, just moved it’; the 2 x 4 was part of the guard rail; ‘the bed, the dump portion that carries the dirt was still up’; the truck was ‘barely moving’; immediately after the truck hit the 2 x 4 ‘Mr. Phillips went through the window right alongside of him about three foot above the thing where he was standing, the walk’; he did not ‘actually see him go through the window’; at the time the truck struck the 2 x 4 ‘I was right under the staging. I left immediately, got into the garage area’; ‘Q. Prior to the happening of the accident did you see Mr. Phillips up on the scaffolding? A. Well, I knew he was there. Q. I asked you if you saw him. A. I think so, yes. Q. Do you recall exactly where he was on the scaffolding? [A.] Well, he was working on the back of the building putting up the chicken wire’; ‘Q. Did you see Mr. Phillips up on the scaffolding just before the bed of the truck hit the 2 by 4? A. Yes; he stopped working and was watching the truck. Q. Was Mr. Phillips standing near this window at that time? A. That is right, standing in back of the building. I don't know just how close to the window he was, but he stopped working and was watching the truck’; ‘Q. When the truck turned west where were you? A. I was underneath the staging by the garages. Q. Did you remain underneath the staging all of the subsequent time up until the time of the accident? A. Yes, about five or ten minutes. Q. When had you moved under the staging for the first time? A. When I saw the truck pulling in’; ‘Q. * * * So there is no misunderstanding, you went back to stand underneath the staging so that the truck would not hit the staging; is that correct? A. That is correct’; ‘Q. You were watching and keeping an eye on the truck all the time it was dumping? A. Yes; there would be no reason to stand there otherwise.’ Westenhaver testified that eight to ten loads of dirt a day were dumped on the property; about 8 loads had been dumped on the day of and prior to the accident.

Defendant Green testified he had delivered 4 loads of dirt to the property on the date of and before the accident, and he was operating the only truck in that area on that day.

Defendants' points are that the court erred: (1) in refusing to give instructions on contributory negligence; (2) in admitting evidence of custom; (3) in refusing to permit defendants to impeach plaintiff.

Defendants requested and the court refused to give three instructions on contributory negligence.1 It is asserted the evidence compelled the giving of the refused instructions, that there was a clear-cut conflict in the evidence relating to plaintiff's conduct which required the submission of that issue to the jury.

 It is of course settled that each party is entitled to have instructions on his theory of the case submitted to the jury in accordance with the pleadings and proof, and it is incumbent on the trial court to instruct on all vital issues involved. Sills v. Los Angeles Transit Lines, 40 Cal.2d 630, 633, 255 P.2d 795; Rideau v. Los Angeles Transit Lines, 124 Cal.App.2d 466, 469, 268 P.2d 772.

 Viewing the evidence in the light most favorable to defendants' contention as we must, we are of the opinion there was enough evidence, though slight, to require the giving of the instructions. Plaintiff was an experienced lather. He knew the truck was in the immediate area of the scaffold. It was only 3 feet from the scaffold. On the scaffold he was only 14 feet above the ground. He heard the motor of the truck running, knew the truck was moving, and guessed Green ‘was shifting around to dump the load.’ According to the testimony of the witness Westenhaver, ‘Just before the bed of the truck hit the 2 by 4,’ plaintiff ‘stopped working and was watching the truck.’ This testimony is not a conclusion, as plaintiff argues, but a statement of a fact. Plaintiff testified the scaffold only moved ‘one to two feet, about’; it did not fall; no boards fell down. Plaintiff ‘lunged’ through the window head first although there were hand rails around the scaffold and it was sturdily constructed. On this evidence it cannot be said as a matter of law that plaintiff was not contributively negligent and that his negligence was not a proximate cause of his injury. The court erred in refusing the requested instructions.

 It should be mentioned that at plaintiff's request the court gave an instruction on imminent peril which may, under certain circumstances, relieve a party from the application of the doctrine of contributory negligence. 35 Cal.Jur.2d 748, § 220. Whether the doctrine of imminent peril applies so as to excuse a plaintiff from a charge of contributory negligence is a question for the trier of fact. Leo v. Dunham, 41 Cal.2d 712, 715, 264 P.2d 1.

Defendants' point that the court erred in permitting evidence of custom is predicated on the testimony of Paul Ellison, called by plaintiff. Ellison testified he was the lathing foreman on the job; he had been in the lathing business about 9 years, and a foreman about 6 years. We quote the record with respect to his testimony as to custom in the margin.2 Over defendants' objections in response to questions by the court he said the universal rule in the trade when a scaffold ‘is threatening to collapse’ or starts to give way is ‘to jump through any open window or door.’ There was no testimony that plaintiff knew of the custom.

 Evidence of custom may not be offered for the purpose of excusing a negligent act but it may be offered for the bearing it has on evidence of due care or a want of it. Miller v. Midway Fishing Tool Co., 106 Cal.App.2d 612, 615, 235 P.2d 630. The standard of due care is not fixed by custom or altered by its presence or absence. Gonzales v. Robert G. Hiller Const. Co., Cal.App., 3 Cal.Rptr. 832. One engaged in a particular trade is presumed to have knowledge of the commonly known customs of his own field of activity. United Iron Wks. v. Standard B. C. Co., 98 Cal.App. 517, 519, 277 P. 183; 49 Cal.Jur.2d 642, § 11. ‘The rule is well established that evidence of the custom of a trade is ordinarily admissible in negligence cases where it has a bearing on either negligence or contributory negligence [citations]. In Burke v. John E. Marshall, Inc., 42 Cal.App.2d 195, 108 P.2d 738, 743, hearing denied, the court said: ‘Where the issue is one of negligence in the performance or failure to perform some act, it is clear that evidence of the ordinary practice and custom which is generally followed in the performance of such act under the same or similar circumstances is competent.’' Miller v. Midway Fishing Tool Co., 106 Cal.App.2d 612, 614, 235 P.2d 630, 631.

 Plaintiff, who was an experienced lather, is presumed to have had knowledge of the custom. The court did not err in admitting the evidence of custom.

It is asserted the court erred in erroneously restricting the cross-examination of plaintiff with reference to a later injury. One of plaintiff's chief complaints was that he had ringing in both ears, which had continued almost two years at the time of trial. There was evidence to the effect this condition is not discoverable by any objective test, that it is purely subjective. Plaintiff also complained of an injury to his head, neck, and side. He claimed that after the accident he could not do much overhead work because of pain in the neck; that he had never since the accident been able to produce the work he used to produce. He claimed a diminution of earnings up to the time of trial as a result of the accident.

 Plaintiff had a second accident on January 13, 1959, the day of the pretrial conference, and after all discovery proceedings had been had. Defendants' first knowledge of the second accident came in the cross-examination of plaintiff. The court refused to permit defendants to inquire into the facts of the second accident on the ground ‘the Complaint is predicated upon the statement of his injuries, if any, as of the day the Complaint was filed.’ The ruling was manifestly error. Defendants were entitled to show, if they could, that plaintiff's complaints at the trial resulted from the second accident and not the first. Davis v. Franson, 141 Cal.App.2d 263, 272, 296 P.2d 600; Behr. v. County of Santa Cruz, 172 Cal.App.2d 697, 704, 342 P.2d 987. ‘It is only when the cross-examination is upon collateral matters which are irrelevant to the issue that the witness cannot be impeached by contradictory evidence. * * * If the collateral fact is relevant to the issue, it may be shown either by the cross-examination of a witness or by direct evidence thereof.’ Moody v. Peirano, 4 Cal.App. 411, 416, 88 P. 380, 381.

It is asserted the court erred in refusing to permit plaintiff to be impeached by testimony showing he had been treated for bursitis within five years of the accident after he had denied receiving medical treatment for any bodily conditions. Plaintiff testified that in the five years before the accident he was in good health and he did not, during that period, have any physical disability of which he was aware; that outside of a cold he had not seen a doctor for a physical disability in the five years preceding the accident. Plaintiff then testified:

‘Q. In the five years before this accident occurred, and I am referring to the accident of April 19, 1957, were you ever troubled with bursitis of the right shoulder? A. No.

‘Q. Since this accident have you been troubled with bursitis of the right shoulder? A. No.

‘Q. I take it from both of your answers that you have never sought any medical attention for that condition? A. Not in the five years, no.

‘Q. And not since this accident? A. Not since, no.’

The Court: All right, did you ever have occasion to visit a doctor with an affliction that you had that needed medical care that, in your opinion, wasn't connected with this accident?

‘The Witness: Yes, I did.

‘Q. By Mr. De Buys: When was that? A. January 13, 1959.

‘Q. No other times—— A. No.

‘Q. Since the accident? A. No other time.’

Dr. Maurice Young treated plaintiff after the accident of April 19, 1957 with respect to which this suit was brought. On cross-examination Dr. Young could not recall whether he had treated plaintiff for an injury in July 1957. He could not recall if plaintiff had seen him on July 15, 1957 with reference to a bruise on the right shoulder and sprained ligaments while taking a spare tire out of his car.

Thereafter defendants called Richard Surdez, supervisor of California Physicians Service, who produced records purporting to relate to plaintiff. The records were carbon copies of original forms completed by physicians Young and Shapiro. The report purporting to come from Dr. Young was dated July 1957. The two reports from Dr. Shapiro were dated September and October, 1954. Surdez testified the carbon copies were kept in the regular course of business of the Service and are sent to the Service by the attending physician whenever he submits a claim to the Service for payment.

Defendants offered the three reports in evidence. Plaintiff objected on the ground of immateriality. The objection was sustained. The court granted defendants leave to renew the offer.

 Thereafter defendants called Dr. Shapiro, who testified he had no records for 1954; they were burned in a fire. He identified the signatures on two of the reports produced by Surdez as his. The court sustained all objections to any testimony from Dr. Shapiro relating to any treatment given plaintiff for bursitis. Defendants then offered to prove Dr. Shapiro would testify he treated plaintiff for bursitis of the right shoulder in September and October 1954. The rulings were clearly erroneous. Strauss v. Buckley, 20 Cal.App.2d 7, 9, 65 P.2d 1352. The questions asked Dr. Shapiro and those proposed in the offer of proof were proper examination directed to discrediting plaintiff's testimony relating to his loss of earning capacity and a probable exaggeration of his physical injuries, as well as to discredit him as a witness.

At the conclusion of the testimony defendants renewed the offer of the three reports produced by Surdez. Plaintiff's objection was sustained.

 Defendants assert the court erred in denying admission in evidence of the three carbon copies of reports produced by Surdez. They say there was a conflict between the report purporting to come from Dr. Young and his testimony on the stand. Apparently there was a conflict. They say the reports from Dr. Shapiro contradicted plaintiff's testimony that he had not been treated for bursitis in the five years before the accident. Apparently they did. The carbon copy purporting to come from Dr. Shapiro showed diagnosis of ‘Acute subdeltoid bursitis, right shoulder,’ and that treatments were given on September 9, 10, 11, 13, 16, 18, 20, 22, and 24, and on October 1, 2, 8, 9, and 11. The report of Dr. Young showed diagnosis of ‘bruised right elbow & sprained ligaments July 14, 1957, while taking spare tire out of car at home in garage,’ and office visits on July 15, 16, 19, 23, 25, 27, and 30. We are of the opinion the reports were sufficiently identified to be admissible in evidence. They were offered as records of California Physicians Service. They were dated and signed by Doctors Shapiro and Young. It sufficiently appeared that they were made in the regular course of business, at or near the time of the event. Code Civ.Proc., § 1953f; Loper v. Morrison, 23 Cal.2d 600, 608–609, 145 P.2d 1; Nichols v McCoy, 38 Cal.2d 447, 449–450, 240 P.2d 569.

 No judgment shall be set aside unless ‘after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ ‘[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' People v. Watson, 46 Cal.2d 818, 834, 836, 299 P.2d 243, 253, 255. The only possible conflict in the evidence is between the testimony of plaintiff that he was facing the building at his work at the time the truck hit the 2 x 4 and the testimony of Westenhaver that just before the truck hit the 2 x 4 plaintiff stopped working and was watching the truck. What he meant by ‘just before’ was not developed. The testimony of Westenhaver was not convincing. He said he was underneath the scaffold directing the truck; when plaintiff went through the window he (Westenhaver) ‘was right under the staging’; he left immediately, ‘got into the garage area.’ When asked if before the accident he saw plaintiff on the scaffold, he said he knew he was there; when asked again if he saw him, he answered, ‘I think so, yes.’ He had moved under the scaffold when he saw the truck pulling in. He remained underneath the scaffold all the time until the accident; he was ‘watching and keeping an eye on the truck all the time it was dumping.’ In fact he was under two scaffolds, one at the 8-foot level, and one on the 14-foot level on which plaintiff was working. How Westenhaver could remain under the scaffold at all times directing he truck, watching and keeping an eye on it all the time it was dumping, and while doing so see plaintiff stop working and watch the truck, was not explained. In view of the unanimous verdict it seems obvious the jury placed no stock in Westenhaver's testimony mony that just before the truck hit the 2 x 4 plaintiff stopped working and was watching the truck. The jury without doubt concluded that without warning the lifted bed of the truck hit the 2 x 4 protruding from the scaffold, causing a ‘terrific jerk’ and that plaintiff had perhaps a second in which to react. Applying the test stated in People v. Watson, supra, 46 Cal.2d 818, 834, 299 P.2d 243, we are of the opinion that it is not reasonably probable that a result more favorable to defendants would have been reached in the absence of the errors we have noted.



1.  The instructions refused were BAJI 101, 103–1 (Revised), and 113.

2.  ‘Q. By Mr. Steele [attorney for plaintiff]: Mr. Ellison, based on your experience as a lather and working on scaffolds, is there any custom in the trade to your knowledge regarding the action to be taken by someone on a scaffold when a scaffold is threatening to collapse? ‘Mr. De Buys [attorney for defendants]: Your Honor, I will object to that as completely immaterial. ‘Mr. Steele: If your Honor please, this is a custom in the trade. ‘Mr. De Buys: I further object to it on the ground no proper foundation has been laid. ‘The Court: Mr. De Buys, in view of the fact that the reaction that causes a person to move one way or another in his moment of peril is such as to give him latitude, we lawyers know what this is. The question is: Well, did he do what a reasonable man would do or not. He isn't held to that measure. * * * ‘The Court: The objection will be overruled. You understood? From your experience there I take it you have been present when scaffolds have given way? ‘The Witness: Yes. ‘The Court: It happens with some frequency? ‘The Witness: Yes. ‘The Court: As among your people, that is people in your trade, is there and has there been discussed the best way to preserve life and limb, how to act when the thing starts to go? ‘The Witness: Yes. ‘Mr. De Buys: Your Honor, just a minute; I am going to repeat my objection to the Court's question. There is no proper foundation laid. ‘The Court: I just got through laying a foundation, I thought. ‘Mr. De Buys: I am just repeating my objection, your Honor. ‘The Court: If you make the objection you have to show wherein the foundation is lacking and you may do that now. ‘Mr. De Buys: The objection is on the grounds, on this point, this witness has not been qualified as an expert, number one, on scaffolding. Number two, you would have to show the same type of scaffolding, the same position, the same height, and so forth. Number three, he has not been asked if he is familiar with the trade and custom, if there is such a thing, in this area. ‘The Court: I just got through, I thought, asking him whether he was. You may take him on voir dire if you want to. ‘Mr. De Buys: No. ‘The Court: How long have you been working around buildings? ‘The Witness: About 10, 11 years, sir. ‘The Court: All right; what is this thing that is talked about among your people as to what to do in case a scaffold gives way. ‘The Witness: I cannot cite myself, sir? ‘The Court: Then that is the answer to it. ‘The Witness: May I cite my own—— ‘The Court: No, you may not cite your own. Each one would be able to figure out what he would do in case the ship sinks or the scaffold goes. We are only interested in knowing whether or not there is a universal rule. Whether you accept it or disregard it, that is beside the point. There is no universal rule? ‘The Witness: Yes, there is. ‘The Court: What is the universal rule? ‘The Witness: The universal rule is to jump through any open window or door.’ At a later point in the examination of the witness, this occurred: ‘Juror Number 2: Your Honor, I didn't have a chance to get the first answer that the witness gave to the question whether there is a universal rule for behavior. I heard the second one. I didn't hear the first one. ‘The Court: I think if it is all right with counsel, I asked the question whether there was a kind of universal understanding or rule that pertained to the safety of men working upon scaffolds such as this, and he said there was such a rule; and I said, ‘What is it?’ He said when a scaffold starts to give way to jump, or he used the word ‘open,’ to jump for an open window or door if there was one there. That was your answer, wasn't it? ‘The Witness: Yes, sir.’

VALLEÉ, Justice.

SHINN, P. J., and FORD, J., concur.