MORGAN v. William H. Smith, individually and doing business as Aaron Electric Company, Cross-Defendant, Appellant and Respondent.

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Court of Appeal, Second District, Division 4, California.

Earl MORGAN and Frederic J. Saetelle, Plaintiffs and Respondents, v. Carl STUBBLEFIELD and William Butler, individually and as partners, doing business as Able Equipment Rental, Defendants, Cross-Complainants and Appellants, Associated Construction and Engineering Company, Inc., Defendant, Cross-Complainant, Appellant and Respondent, William H. Smith, individually and doing business as Aaron Electric Company, Cross-Defendant, Appellant and Respondent.

Nos. 36004, 36035.

Decided: April 30, 1971

George A. Kuittinen and Abe Mutchnik, Los Angeles, for defendants, cross complainants and appellants Stubblefield and Butler dba Able Equipment Rental. Gilbert, Thompson, Kelly, Crowley & Jennett, W. I. Gilbert, Jr., and Wunderlich, Los Angeles, for Associated Construction and Engineering Company, Inc., defendant, cross complainant, appellant and respondent. McBain & Morgan, Angus C. McBain and Elmer O. Docken, Los Angeles, for William H. Smith dba Aaron Electric Company, cross defendant, appellant and respondent. Pray, Price, Williams & Russell, William A. Williams, Long Beach, and Henry F. Walker, Los Angeles, for plaintiffs and respondents.

These appeals are taken from judgments entered in two consolidated actions for personal injuries entitled: Morgan v. Associated Construction & Engineering Company, Inc., et al. (L. A. Superior Court No. SOC–12176) and Saetelle v. Associated Construction & Engineering Company, Inc., et al. (L. A. Superior Court No. SOC–11640).

Associated, as general contractor, had contracted to erect for Consolidated Food Corp. its ‘Shasta Beverage’ building in La Mirada, California. William H. Smith, doing business as ‘Aaron Electric Company’ (herein ‘Aaron’) performed electric work on the job under subcontract with Associated. Plaintiffs were electricians employed by Aaron at the time of the accident. They were injured when they toppled from a scaffold which Aaron had rented from Carl Stubblefield and William Butler, partners, doing business as ‘Able Equipment Rental’ (herein ‘Able’).

The plaintiffs sued Associated, Able and Consolidated Food Corp. (The latter defendant obtained judgments of nonsuit and is not involved in these appeals.) Able cross-complained against Aaron in each case, seeking indemnity from Aaron based upon terms of a written agreement between them covering rental of the scaffold. Associated also filed cross complaints, naming Aaron and Able as cross defendants. Through these, Associated sought indemnity from Aaron under the terms of the written agreement between them, and from both Aaron and Able on allegations that Associated's negligence, if any, was secondary to that of Aaron and Able in causing injuries to the plaintiffs. (Able's motion for nonsuit as this cross complaint was granted. Associated has not appealed from that ruling.)

Trial before a jury resulted in verdicts and judgments for each plaintiff against Associated and Able, and in favor of Associated against Aaron on Associated's cross complaints for indemnity. Judgments were in favor of Aaron on Able's cross complaints for indemnity.

Defendants Associated and Able appeal from the judgments for plaintiffs. Able also appeals from the court's orders denying its motions for judgments n. o. v. and additionally appeals from the judgments favoring Aaron on Able's cross complaints against Aaron indemnity. Aaron appeals from the judgments favoring Associated on the latter's cross complaints, and from the court's orders denying Aaron's motions for judgments n. o. v. and for a new trial1 as to such cross complaints.

I. Appeals Of Associated and Able As Defendants.

We will first consider the appeals of defendants Associated and Able from the judgments favoring plaintiffs.

Among other matters argued, Associated contends the evidence is, as a matter of law, insufficient to establish negligence or proximate causation on its part. The evidence on liability as to each plaintiff is substantially the same. We will briefly summarize it. Wherever any conflict exists in the evidence or inferences to be drawn from if, we adopt that evience favoring the judgments and ignore conflicts, as we are required to do on such appeals. (Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183 [1935].)

The accident occurred December 17, 1964, during morning hours. On December 7th, Able had rented to Aaron the scaffold involved. It was delivered unassembled and was put together by plaintiffs and their fellow employees. A writing entitled ‘Contract’ accompanied the unassembled parts; it was signed by William H. Smith for Aaron and returned to Able. This described the scaffold (two identical scaffolds actually were ordered and delivered as 19 feet high, but witnesses approximated the height at 17 feet, plus guardrails. It was 10 feet long and 5 feet wide, its dimensions apparently being uniform from top to bottom. There were 4 rubber-tired caster wheels, each with an 8 inch outside diameter.

The building under construction was approximately 500 feet long and 300 feet wide, with an arched ceiling varying from 20 to 24 feet in height above the cement floor. Pillars or columns located approximately 20 feet apart, supported the roof structure.

Associated had created a hole in the concrete, anticipating installation of the base for a stairway, not yet constructed. This hole was approximately a foot square and a foot deep, and is the hole involved in the accident. It was ‘out in the middle of the floor,’ between the columns. Neither plaintiff was aware of this hole. No cover was on the hole at the time of the accident and none had been there for some time. A piece of plywood covered it at times, but it would slide and and easily could be kicked off.

The plaintiffs worked on top of the scaffold, affixing an electric conduit to the underside of the roof. A fellow employee, Freeman Metzger, assisted them from the ground by moving the scaffold and procuring needed materials. He was aware of the uncovered hole. At the time of the accident, plaintiffs had sent Metzger to get material for them. At the time he left, the hole was approximately 6 feet away from the nearest wheel of the scaffold and did not lie in the direction the work was progressing. The scaffold's wheels were equipped with individual brakes which would lock them but, when Metzger left, the wheels were not locked. The floor was level concrete and ‘a little rough.’ When Metzger was 200 feet or more away the scaffold fell; one of its wheels had got over the hole, permitting the scaffold to tilt and topple.

Windows and some large doors permitted daylight to enter the structure, but there was no artificial illumination inside. The natural light was sufficient for plaintiffs to work by.

Plaintiffs based their claims against Associated upon two grounds, namely: (1) that Associated negligently created and maintained the hole; and (2) negligently provided insufficient illumination, thereby creating an unsafe place which to work.

The trial court instructed the jury on the common law duties of a general contractor. Additionally, it instructed the jury that a violation by Associated of two specified safety orders could constitute negligence. The first such was Industrial Safety Order No. 3242, reading in part: ‘Illumination. Working areas shall be provided with either natural or artificial illumination which is adequate and suitable to secure the safety of employees.’ The second was Industrial Safety Order No. 1620 reading in part: ‘All planks, railings, or barriers guarding floor, roof, or wall openings shall be left in place until further construction provides permanent protection or an effective hazard control. Work shall be arranged so that openings are left unprotected for the least time possible during the transition from temporary to permanent safeguards.’

Associated contends: (a) there was no evidence to establish Associated as an ‘employer’ to whom such safety orders would be applicable; (b) there was no evidence to establish its violation of either safety order; (c) that permitting Associated to be held as an ‘employer’ of plaintiffs deprived it of equal protection under the pertinent provisions of the Constitution and, finally, (d) there was no evidence to show that violation of either order was a proximate of the accident.

The evidence was sufficient to hold Associated negligent toward plaintiffs on common law tenets. Thus, as to the hole: ‘If as the generalissimo of a construction job, the general contractor leaves holes in the floor * * * whereby any invitee might suffer injury, of course he would be liable.’ (Hard v. Hollywood Turf Club, 112 Cal.App.2d 263, 269, 246 P.2d 716, 720 [1952]. And see: Kuntz v. Del E. Webb Constr. Co., 57 Cal.2d 100, 104–105, 18 Cal.Rptr. 527, 368 P.2d 127 [1961].)2 The same common law rule would support a finding of negligence when inadequate lighting or other conditions create a hazard to persons on premises under control of a general contractor. Associated reasonably should have foreseen that a hole, located as was this, created a hazard. The evidence was sufficient to support a conclusion that the hole was not readily apparent because of a camouflage condition (Touhy v. Owl Drug Co., 6 Cal.App.2d 64, 44 P.2d 405 [1953]) as revealed by photographs in evidence, because of inadequate lighting (Johnson v. De La Guerra Properties, Inc., 28 Cal.2d 394, 400–401, 170 P.2d 5 [1946]) or because of a combination of both factors.

Instructions given at plaintiffs' request present not common law negligence, but negligence based upon violations of safety orders. Safety Order No. 3242 related to illumination and No. 1620 to the guarding of holes in floors. In contending they are inapplicable, Associated argues that it was not an ‘employer’ (Lab.Code, §§ 6304, 6400 etc.), obligated to comply with these orders for plaintiffs' safety, chiefly relying upon Kuntz and Hard, as well as on other cases. Such reliance is misplaced. In Hard, plaintiff's own employer, a subcontractor, constructed a defective scaffold which collapsed injuring the plaintiff who sued the general contractor. Here, associated, the general contractor, itself created the hole in the floor into which a wheel of the scaffold fell. It is this unguarded hole to which Safety Order No. 1620 relates. In Kuntz, one subcontractor of Webb created the hazard injuring plaintiff, who was employed by another subcontractor. Webb, the general contractor, had created no hazard nor was it directly or vicariously responsible for the first subcontractor's failure to comply with certain safety orders. Van Arsdale v. Hollinger, 68 Cal.2d 245, 66 Cal.Rptr. 20, 437 P.2d 508 (1968), McDonald v. Shell Oil Co., 44 Cal.2d 785, 285 P.2d 902 (1955) and Freire v. Imperial Irrigation Dist., 254 Cal.App.2d 380, 61 Cal.Rptr. 925 (1967), all cited by Associated, are similarly distinguishable, as is Woolen v. Aerojet General Corp., 57 Cal.2d 407, 20 Cal.Rptr. 12, 369 P.2d 708 (1962).

In the case at bench, associated retained control of the floor area, created the hole and had control of the general illumination; it knew subcontractors' employees worked in the area. As to these features, over which it retained and exercised control, it was in the position of an ‘employer’ (Markley v. Beagle, 66 Cal.2d 951, 59 Cal.Rptr. 809, 429 P.2d 129 [1967]; Porter v. Montgomery Ward & Co., Inc., 48 Cal.2d 846, 313 P.2d 854 [1957]), unlike the general contractors in Hard and Kuntz, and the owners in Wooden, Van Arsdale, McDonald and Freire. (Making similar distinctions, see: Gaw v. McKanna, 228 [1964].) Safety Order 3242 required artificial light ‘adequate and suitable to secure the safety of employees.’ Although the light was adequate for plaintiffs to do their work on the roof's substructure, according to the evidence, its adequacy to secure their ‘safety’ was a jury question, in our view. Additionally, whether order 1620 was violated by Associated presented a question of fact.

Associated further contends that to require it to comply with safety orders, as an ‘employer’ of plaintiffs, would deprive it of equal protection of the law. It argues that so to hold would place upon it the burdens of an employer without its receiving any of the benefits conferred upon the true employer of the plaintiffs. No, authority is cited for this proposition3 and we are disinclined to adopt it.

Associated next contends that no evidence shows any negligence on its part was a proximate cause of the accident, quoting language from Spencer v. Beatty Safway Scaffold Co., 141 Cal.App.2d 875, 881–882, 297 P.2d 746 (1956) and Johnson v. Union Furniture Co., 31 Cal.App.2d 234, 237, 87 P.2d 917 (1939). We disagree.

Associated points out that the hole in the floor was 6 feet from the nearest scaffold wheel at the time Metzger walked away from it and that the hole was not in the direction in which the work was progressing. Associated argues that plaintiffs supplied the motive power needed to move the scaffold. However, such conduct would constitute only a contributing or concurrent cause of the accident, not the sole or independent cause. Such contribution by plaintiffs would not bar their recovery unless it was negligent contribution, and the jury found there was no contributory negligence.

A lack of sufficient light to comply with the safety order could have contributed to plaintiffs' ignorance of the hole's presence, making them unaware of the danger it presented to the scaffold's movement.

There was sufficient evidence to establish a proximate relationship between Associated's violation of the safety orders and the accident.4

Associated and Able join in arguing that plaintiffs' conduct established their contributory negligence as a matter of law, contending the evidence shows without dispute that plaintiffs, themselves, violated safety orders and that such conduct contributed to cause the accident. They further contend the trial court prejudicially erred when it instructed the jury that violations by plaintiffs could not, as a matter of law, constitute negligence.5

Basic to the argument is the contention that subdivision (c) of one safety order defined a standard of care applicable only to workmen who, if they violated such standard, could found negligent. The pertinent safety order was No. 1652, reading:

‘Tower Scaffolds and Rolling Scaffolds.

‘(a) The minimum dimension of the base of any freestanding tower or rolling scaffold shall not be less than 1/3 the heighth of the scaffold, or the scaffold must be securely braced, guyed, anchored, or counterweighted to prevent tipping * * *

‘(c) Wheels or casters of rolling scaffolds shall be provided with an effective locking device, and kept locked when men are climbing or working on the scaffold. At least two of the four casters or wheels shall be a swivel type * * *.

‘(e) Riding. Moving of rolling scaffolds while men are on the platforms is prohibited. Exception: Workmen may ride on rolling scaffolds moved by men below if the following conditions exist: (1) The floor or surface is within three degrees of level, and free from pits, holes, or obstructions; (2) The minimum dimension of the scaffold base, when ready for rolling, is at least 1/3 of the heighth; (3) The wheels are equipped with rubber or similar resilient tires, and are at least one foot in diameter, overall.’

In instructing the jury in the language of that regulation, the court limited its effect to evaluating the conduct of Aaron (under Witt v. Jackson, supra) and Able. It instructed the jury not to consider it in evaluating the conduct of Associated,6 or of the plaintiffs (see fn. 5).

As to plaintiffs, subsection (e) permits ‘riding’ only if three conditions are met and they were not inasmuch as: (1) there were holes in the floor, (2) the scaffold did not meet the minimum dimension requirement, and (3) the scaffold's wheels were undersized. There was evidence from which the jury might conclude that plaintiffs moved the scaffold by grasping the substructure of the roof and pulling the scaffold along as they worked. Associated and Able argue subsection (e) prohibits this and established a standard of care for determining plaintiffs' own negligence.

In support of their position, appellants refer us to 35 Cal.Jur.2d 734 ‘Negligence’ § 212: ‘The doctrine of negligence per se because of violation of a statute, ordinance, or safety order applies in determining contributory negligence.’ (Emphasis added.) They also cite Restatement of the Law of Torts (2d) § 469 which states: ‘(1) The plaintiff's unexcused violation of a legislative enactment or an administrative regulation which defines a standard of conduct for his own protection is contributory negligence in itself if it is a legally contributing cause of his harm. (2) The rules which determine whether such an enactment or regulation defines a standard of conduct for the protection of the plaintiff, and when the violation will be excused, are the same as those applicable to the defendant.’ (Emphasis supplied.)

Further research discloses that Evidence Code, section 669 states a rule applicable equally to a defendant or plaintiff: ‘Failure to exercise due care. (a) The failure of a person to exercise due care is presumed if: (1) He violated a statute, ordinance, or regulation of a public entity.’ (Emphasis added.) The presumption is one affecting the burden of proof (Evid.Code § 660), according to ‘Comment’ of the Law Revision Commission.

And Labor Code, § 6506 reads: Compliance with orders, rules, and regulations. Every person shall comply with every order, decision, direction, rule, or regulation made or prescribed as specified in this part and in any way relating to or affecting safety of employments or places of employment or to protect the life and safety of employees in such employments or places of employment. Every person shall do everything necessary or proper in order to secure compliance with, and observance of, every such order, decision, direction, rule, or regulation.' The section makes it the duty of ‘every person’ to comply with safety orders without regard to his status as employer employee.

Finally, there is language in Nevis v. Pacific Gas & Electric Co., 43 Cal.2d 626 at page 633, 275 P.2d 761 (1954) inferring support for appellants' position.

In their briefs, appellants concede it to be the rule ‘that if a defendant employer violates a safety order applicable to him, he cannot defend on tne ground that the injured comployee plaintiff also violated the same order’ (emphasis by appellants), pointing to Lokey v. Pine Mountain Lbr. Co., 205, Cal.App.2d 522, 23 Cal.Rptr. 293 (1962) as exemplifying the rule. Indeed, that case factually fits their analysis. In Lokey the court stated (pp. 530–531, 23 Cal.Rptr. p. 298): ‘The argument of appellant is in effect: True it was our responsibility to obey the safety order and furnish safe appliances, but it was respondent's duty to see that we performed duty and he is therefore barred by contributory negligence as a matter of law if he does not see to it that we do. The argument is ingenious but does it not create a doctrine of absolute nonliability in cases where the defendant's negligence is predicated upon the violation of a safety order? We cannot believe the Labor Code. We think its aim was to protect the workman, not to invite employer violation by granting such convenient absolution.’ Appellants argue here that the entire safety order had no application to Associated, and that plaintiff's violations were of subsection (e), a different portion of the safety order than that violated by Aaron or Able. By virtue of this, they argue, the reasoning of Lokey is inapplicable.

However, and contrary to appellants' views, our Supreme Court has stated the rule more broadly. In Alber v. Owens, 66 Cal.2d 790, 59 Cal.Rptr. 117, 427 P.2d 781 (1967) plaintiff was a subcontractor on the job and actively participated in the work of his own employees, being thus an ‘employer’ as well as an ‘employee.’ Plaintiff fell from a balcony and was injured because no guardrails were provided. It was contended by the general contractor that, as an ‘employer’, plaintiff should have provided guardrails, thus defeating his claim against the general contractor in capacity of ‘employee. The Supreme Court made these statements (p. 799, 59 Cal.Rptr. p. 123, 427 P.2d p. 787): ‘The argument that the safety orders define a standard of care for employees assertible as a defense by employers has been previously rejected as incompatible with the legislative purposes. * * * We hold that his actions relevant to his own protection must be judged by the common law standard of care. [3] In order to bar an injured employee from recovery, therefore, a negligent employer must show that the employee acted in a manner unreasonable under the circumstances.’ Taking this language on its face a broad concept is asserted, namely, that in a civil action against a third party who fits the statutory definition of an ‘employer,’ violation of a safety order by the injured plaintiff-employee cannot be considered in determining whether he was, or was not, contributorily negligent; rather, his conduct must be judged on other principles.

Although much is to be said favoring appellants' position, we are bound to follow precepts laid down on such matters by the California Supreme Court. If the rule is to be changed then, in the light of the broad language it used, our Supreme Court is the body to do so.

Furthermore, although subsection (e) of Industrial Safety Order No. 1652 is ambiguous, we do not interpret it as appellants contend. The subsection begins: ‘Moving of rolling scaffolds while men are on the platforms is prohibited.’ If this means ‘moving by men on the platforms is prohibited’ it does not so state. Contrariwise, it appears to aim at ‘moving’ of the scaffold by others; thus, the exception is specifically limited to moving ‘by men below.’ So interpreting the order, it would not apply as a standard by which to judge plaintiffs' conduct, but only the conduct of Metzger, the Aaron man on the ground. We conclude no prejudicial error was committed by the trial court in its instruction to the jury (see fn. 5), even though that instruction was ambiguous.

Associated of instructions regarding breach of warranty but the complaints are groundless. These instructions specified that they pertained only to a ‘renter’ of goods. Inasmuch as Associated was not a renter, they cannot have harmed it.

Further complaint is made of the trial court's refusal to instruct, on request of Associated, that ‘there was no obligation upon anyone connected with this case to warn either plaintiff of any condition on the premises which was known to plaintiffs, or equally as obvious to plaintiffs as to anyone else.’ The phrase ‘equally as obvious to plaintiffs as to anyone else’ is argumentive and does not correctly state the common law rule. (See: Blodgett v. B. H. Dyas Co., 4 Cal.2d 511, 513, 50 P.2d 801 [1935]; Shanley v. American Olive Co., 185 Cal. 552, 555, 197 P. 793 [1921]; Obrien v. Fong Wan. 185 Cal.App.2d 112, 116, 8 Cal.Rptr. 124 [1960]; King v. Griffith Co., 65 Cal.App.2d 114, 117, 150 P.2d 8 [1944]; Walker v. Greenberger, 63 Cal.App.2d 457, 461–462, 147 P.2d 105 [1944]; Matherne v. Los Feliz Theatre, 53 Cal.App.2d 660, 128 P.2d 59, 666 [1942]; Funari v. Gravem-Inglis Baking Co., 40 Cal.App.2d 25, 29, 104 P.2d 44 [1940].) The instruction was properly refused. A condition that may be ‘as obvious to plaintiffs as to anyone else’ establishes nothing about the condition, itself; it may be equally visible or equally concealed from ‘anyone else.’

Equally without merit is Associated's contention that the trial court erred in refusing offered instructions which would have informed the jury that Associated was not obligated to conduct safety meetings. The jury was never told Associated was so obligated. We find no error in the refusal or, if error, that any harm was done. (See: Judkins v. Aromalene, Inc., 194 Cal.App.2d 48, 54, 14 Cal.Rptr. 623 [1961] for the obverse situation.)

Able complains of the trial court's refusal to give various instructions which it requested. First, relating to breach of warranty, the court gave BAJI (4th ed., rev.) instructions Nos. 401 and 4037 on request of plaintiffs, the latter instruction being adapted by substituting the word ‘renter’ for the word ‘seller.’ Able does not claim warranty doctrines are inapplicable to it as a ‘renter’ of the scaffold; Able does complain of the court's refusal to give BAJI (4th ed., rev.) instruction No. 408–B and the first paragraph of No. 411, as requested by Able.8

The instructions given on warranty were innocuous. Out of the welter of 79 instructions given touching upon liability, damages, issues raised in the cross-complaints and the like, these two stood nearly alone. One other instruction related to warranty, and that merely told the jury that plaintiffs had the burden of proving ‘warranty and breach of such warranty as to the defendant, Able Equipment Rental, only’, by a preponderance of evidence. Nowhere was the jury told that a plaintiff was to be treated as a ‘rentee’ to whom, as well as to their employer, Aaron, a warranty would run, or that Able could be held liable for breach of warranty. Indeed, an instruction given outlining the issues for the jury to resolve made no mention of warranty whatsoever. We conclude the two instructions given are unlikely to have had any effect upon the jury's verdicts, so that refusal of the other two cannot have constituted prejudicial error.

Both Associated and Able claim error in the trial court's rulings on the admissibility of certain evidence. First is the contention the court should have admitted evidence claimed to rehabilitate the testimony of Bernard Mertes. Mertes did not appear and testify at the trial portions of his deposition, taken in Iowa, were read to the jury. The evidence offered in supposed rehabilitation was testimony hopefully to be elicited from Freeman Metzger. Prior to trial, Metzger had given a statement concerning the accident to a court reporter who had transcribed it. During the trial, counsel for Associated used parts of the statement in cross-examining Metzger, but the trial court precluded him from using the part here complained of; an offer of proof was made. The offer was to show Metzger had stated that he had seen a carpenter run to the scaffold, calling to the men on it. This was exactly what Mertes testified he did so that rehabilitation on that point was irrelevant.

In his statement, Metzger also stated conclusions based upon what one Bill Smith told him had been said to him, Smith, by the carpenter.9 Appellants rely upon Evidence Code, §§ 791 and 1236 as supporting their claim such statements were admissible. We disagree. Evidence Code, § 791 admits evidence of prior consistent statements in rehabilitation only when conditions spelled out in subdivisions (a) or (b)10 are met. Neither condition was met in this case. Furthermore, Metzger had never talked to the carpenter, Mertes, and his testimony regarding what Bill Smith told him that Mertes had said to Smith was inadmissible hearsay.

Appellants' second complaint regarding evidence arises from the testimony of David Schumaker. Called as a witness for plaintiffs, he testified he was a safety engineer employed by the State Division of Industrial Safety. On December 17, 1964, following the accident, he had visited the construction site. He testified to what he had seen there, describing the premises and the scaffold. On cross-examination he testified that, after his inspection, he had made an accident investigation report. He then testified: ‘Q And in preparation for your testimony here yesterday and today, have you had an opportunity to review that report? A I did. Q. Was it necessary that you review that report in order to refresh your recollection as to the events concerning this accident? A After four years or so, it was, yes.’ Appellants contend they should have been permitted to read the report which was present in court. The judge read the report, ruled pursuant to Labor Code, § 6319 that it was confidential and held it could not be used in cross-examining the witness.

Appellants then moved to strike Schumaker's testimony;11 the motion was denied. Following argument at the bench, voir dire examination of Schumaker was conducted by the court. Schumaker then testified that, although he could not recall the names of the contractor and persons involved or the location of the job, he had an independent recollection of investigating the accident and the results of his observations. ‘I would say that I would remember the incident, without the names of who I interviewed and the specific items would be, you know, the location of the job and the contractors involved. I deal with many contractors.’ After giving testimony showing a detailed recollection of the design and dimensions of the scaffold and the location and size of the hole in the floor, the court asked him: ‘Q Am I correct then that the portions of your recollection that were refreshed have to do with the identity of persons and the place of the job, details of that nature? A Primarily, yes. THE COURT: All right. The objections are overruled and the motion is denied.’ Cross-examination then resumed.

According to the testimony given on voir dire examination, the witness did not use the writing ‘to refresh his memory’. He claimed to recall, independently of the report, the matters to which he testified on direct examination. We thus cannot say the trial court erred in refusing to strike his testimony, pursuant to Evidence Code, § 771, or in ruling the report to be confidential and not usable for cross-examination.

Appellants cite the following ruling, made by the court during cross-examination of Schumaker, as additionally demonstrating error: ‘Q And did you have an independent recollection as to whether or not that you found out in the course of your investigation that some conduct or acts on their part [the plaintiffs] contributed to the happening of the accident? MR. WILLIAMS: That is objected to as calling for a conclusion, hearsay, and it is irrelevant. THE COURT: Sustained.’ Argument ensued and an offer of proof was made, although such was unnecessary since this was cross-examination. (Evid.Code, § 354(c).) The offer, however, demonstrates the impropriety of the questioner's purpose. As part of it the cross-examining attorney stated: ‘I could establish—I believe I could establish that during the course of his investigation the witness ascertained, and so reported to his superior, that the two plaintiffs were moving this scaffold from the top of the scaffold. THE COURT: By that you don't mean that he saw them doing any such thing as that? MR. KUITTINEN: No, I don't mean to indicate that at all. THE COURT: Or that he knows of his own knowledge that they were doing that. MR. KUITTINEN: No. I didn't make it clear, Judge. It was that he ascertained and reported, during the course of his investigation * * * And I state to the Court that I do not know how he ascertained it.’ No error appears in the court's ruling; counsel evidently was hoping to elicit a non-expert factual conclusion based upon inadmissible hearsay.

We affirm the judgments in favor of the plaintiffs and against appellants Associated and Able.

II. Appeal Of Cross-Defendant Aaron.

Before weighing this appeal, a discussion of indemnity rights between joint tortfeasors is pertinent. At the outset, we observe that: “A distinction exists between contribution and indemnity in that in the former the parties liable for the tort are said to be in pari delicto and the damages are equally divided, but in the latter, the parties are not deemed to be in pari delicto and the entire burden is placed upon one of them. * * * Where the fault of each is equal in grade and similar in character, implied indemnity is not available since no one should be permitted to found a cause of action on his own wrong.” Rollins v. State of California, 14 Cal.App.3d 160, 165, 92 Cal.Rptr. 251 (1971).

Problems of indemnity are discussed in a multitude of cases. (Cf: Witkin, Summary of California Law [1969 Supp.] 503–511, ‘Torts' §§ 22A–22E.) Generally speaking, a right to be indemnified may arise in three situations. These are:

(1) Direct liability to the injured party by the one seeking indemnity, as where such tortfeasor has a non-delegable duty to use care owed to the injured person. Between the joint tortfeasors two relationships are frequently encountered. These are: (a) one tortfeasor owes a non-delegable duty to the injured person to maintain safe premises, but the joint tortfeasor's acts create the unsafe condition causing the injury (cf: Markley v. Beagle, 66 Cal.2d 951, 59 Cal.Rptr. 809, 429 P.2d 129 [1967]; City & County of S. F. v. Ho Sing, 51 Cal.2d 127, 330 P.2d 802 [1958]; Ferrel v. Vegetable Oil Products Co., 247 Cal.App.2d 117, 55 Cal.Rptr. 589 [1966]; B. F. G. Builders v. Weisner & Coover Co., 206 Cal.App.2d 752, 23 Cal.Rptr. 815 [1962]; Montgomery Ward & Co. v. KPIX Westinghouse Broadcasting Co., 198 Cal.App.2d 759, 18 Cal.Rptr. 3 [1962]; Restatement of Restitution, § 95.) (b) One tortfeasor is on the premises of another pursuant to a work contract and, specifically or by implication, he agrees with that other to perform in a safe, workmanlike manner but fails to do so; as a result, the one owing the non-delegable duty is made liable. (Cf: Aerojet General Corp. v. D. Zelinsky & Sons, 249 Cal.App.2d 604, 607, 57 Cal.Rptr. 701 [1967]; Alisal Sanitary Dist. v. Kennedy, 180 Cal.App.2d 69, 4 Cal.Rptr. 379 [1960]; San Francisco Unified Sch. Dist. v. Cal. Bldg. etc. Co., 162 Cal.App.2d 434, 328 P.2d 785 [1958].) Thus, in these two relationships he with the non-delegable duty breaches it but only as the result of an act of commission or omission by the joint tortfeasor and, as a result, the first may be entitled to indemnification.

(2) Vicarious liability, i. e.: where the negligence of one is imputed to the other because of their relationship. The typical example is where the delicts of the agent are imputed to the principal by application of the doctrine of respondeat superior. Here, the principal may require that his agent indemnify him. (Popejoy v. Hannon, 37 Cal.2d 159, 173, 231 P.2d 484 [1951]; Bradley v. Rosenthal, 154 Cal. 420, 97 P. 875 [1908]; Mascarin Professional Pharmacy v. Hart, 13 Cal.App.3d 462, 91 Cal.Rptr. 560 [1970]; Horn & Barker, Inc. v. Macco Corp., 228 Cal.App.2d 96, 39 Cal.Rptr. 320 [1964]; Myers v. Tranquility Irr. Dist., 26 Cal.App.2d 385, 389, 79 P.2d 419 [1938]; Restatement of Restitution, § 96.)

(3) Contractual indemnity. Where one expressly agrees to indemnify the other he may be held to do so. Such an agreement may involve joint tortfeasors between whom would exist only a right of contribution, absent the contract of indemnity.

The right of one joint tortfeasor to be indemnified by the other against liability to a third party, arising from a breach of the first tortfeasor's non-delegable duty or from vicarious liability, has been called a right of ‘equitable indemnity,’ whereas under (3) the rights are contractual. As to contractual rights, their determination requires an interpretation of the indemnifying agreement. (Cahill Bros., Inc. v. Clementina Co., 208 Cal.App.2d 367, 379–380, 25 Cal.Rptr. 301 [1962]; Indenco, Inc. v. Evans, 201 Cal.App.2d 369, 20 Cal.Rptr. 90 [1962].)

Confusion often arises where there is an overlapping or duplication of the three categories; there ensue discussions in terms of ‘primary’ as opposed to ‘secondary’ liability and ‘active’ as opposed to ‘passive’ conduct. Such categories often have indistinct outlines. (For examples of ‘strained construction’ to find ‘active’ conduct where licensees are hurt on the property of licensors, see: Rowland v. Christian, 69 Cal.2d 108, 114–117, 70 Cal.Rptr. 97, 443 P.2d 561 [1968].) However, where there is an express agreement of indemnity, courts ordinarily will not decide the rights of the parties under principles of ‘equitable indemnity.’ For example, in Alameda County v. Southern Pac. Co., 55 Cal.2d 479, 11 Cal.Rptr. 751, 360 P.2d 327 (1961), there was a contract between the railway and California Rock and Gravel Co. The court stated (p. 488, 11 Cal.Rptr. p. 756, 360 P.2d p. 333): ‘Since the parties industriously expressed these provisions for indemnity, we should be reluctant to engage Rock in another separate and independent obligation of indemnity by implication.’ And in Markley v. Beagle, supra, 66 Cal.2d at page 961, 59 Cal.Rptr. at page 816, 429 P.2d at page 136 it is said: ‘Since the parties expressly contracted with respect to the contractors' duty to indemnify the owners, the extent of that duty must be determined from the contract and not from the independent doctrine of equitable indemnity.’ (Also see: Price v. Shell Oil Co., 2 Cal.3d 245, 256, 85 Cal.Rptr. 178, 466 P.2d 722 [1970]; Cahill Bros., Inc. v. Clementina Co., supra, 208 Cal.App.2d at pages 379–380, 25 Cal.Rptr. 301.)

Here, appellant Aaron had a written subcontract with Associated in the form of a ‘purchase order’. Indemnity was provided therein in this language: ‘(7) Assumptions. Subcontractor will: * * * be responsible for and hold Contractor harmless from all claims for damages to persons * * * caused by Subcontractor or which result from Subcontractor's operations or defective work * * * (9) Laws and Regulations. Subcontractor is an independent contractor, and will in all respects comply with all laws, ordinances and governmental regulations, including building codes, which apply to this subcontract or the work to be performed hereunder * * *.’

The evidence showed that Associated was, itself, directly negligent. Thus, it owed to the injured plaintiffs both a common law and a statutory duty to provide them with a safe place in which to work. By its own conduct it breached these duties. The hole in the floor was created by Associated which also controlled the conditions of lighting. Its liability was neither vicarious nor due solely to Aaron's acts or omissions. The written agreement contains the specific terms of indemnity agreed upon. Under these circumstances the only question to be determined is whether Aaron contracted to indemnify Associated against Associated's own direct fault.

In the indemnity agreement between Associated and Aaron there is no language at all indicating intent by Aaron to indemnify Associated against Associated's own acts or omissions. (Distinguish, e. g., Markley, supra, where the contractor agreed to ‘defend Owner in any suit at law for damages which might arise in connection with the agreed work’ and Price, supra, ‘Lessee shall indemnify Shell against any and all claims * * * caused by or happening in connection with the equipment or the condition, maintenance, possession, operation or use thereof.’) In this regard, the discussion in Price is pertinent (2 Cal.3d pp. 257–258, 85 Cal.Rptr. p. 186, 466 P.2d p. 730): ‘In the indemnity clause before us in the instant case, there is no language ‘expressly and unequivocally’ requiring Flying Tiger to indemnify Shell for liability or damages caused by Shell's own act in furnishing a defective tank truck or its equipment. No language of such essential specificity indicates that the lessee is to be held responsible for the negligent acts of the lessor * * *.'

In those instances where there is an express agreement to indemnify another against his own conduct, distinctions are made between terms indemnifying the indemnitee for liability based upon its own ‘active’ negligence and indemnity for its ‘passive’ conduct. An agreement to indemnify for ‘active’ conduct of the indemnitee must be clear and specific. ‘Both by precedent and good reason, if an indemnitor such as the plaintiff is to be made responsible for the negligent acts of an indemnitee over whose conduct it has no control, the language imposing such liability should do so expressly and unequivocally so that the contracting party is advised in definite terms of the liability to which it is exposed.’ (Vinnell Co. v. Pacific Elec. Ry. Co., 52 Cal.2d 411, 416, 340 P.2d 604, 608 [1959].) Again, as stated in Markley v. Beagle, supra, 66 Cal.2d at page 962, 59 Cal.Rptr. at page 817, 429 P.2d at page 136: ‘An indemnity clause phrased in general terms will not be interpreted, however, to provide indemnity for consequences resulting from the indemnitee's own actively negligent acts. * * * Mere nonfeasance, however, such as a negligent failure to discover a dangerous condition arising from the work will not preclude indemnity under a general clause such as the one in this case.’ (Also see: Burlingame Motor Co., Inc. v. Peninsula Activities, Inc., 15 Cal.App.3d 656, 663, 93 Cal.Rptr. 376 [1971].)

In the case before us, the jury found Aaron failed to comply with its statutory obligations as an employer. However, the liability of Associated was not predicated upon Aaron's conduct, but upon its own. Aaron agreed to hold Associated harmless from damage caused by Aaron's conduct but not based upon Associated's own conduct. Whether Associated's conduct was ‘active’ or ‘passive’ thus becomes inconsequential.

We are free to disagree with the trial court's interpretation of the agreement. ‘Where, as in the instant case, the indemnity clause was construed by the trial court without the aid of extrinsic evidence, we are not bound by such construction and the interpretation of the clause is a question of law for this court.’ (Price v. Shell Oil Co., supra, 2 Cal.3d at p. 256, 85 Cal.Rptr. at p. 186, 466 P.2d at p. 730) The trial court erred in submitting to the jury a determination of whether Associated's negligence was active or passive.

Yet another consideration arises from the fact that Aaron was the employer of both injured claimants. Labor Code, § 3864 provides in part that: ‘If an action * * * prosecuted by the employee * * * against the third person results judgment against such third person * * * the employer shall have no liability to reimburse or hold such third person harmless on such judgment * * * in absence of a written agreement so to do executed prior to the injury.’ The language of this statute effectively eliminates any claim Associated might have had against Aaron arising from principles of equitable indemnity. (San Francisco Examiner Division v. Sweat, 248 Cal.App.2d 493, 497, 56 Cal.Rptr. 711 [1967]; Progressive Trans. Co. v. Southern California Gas Co., 241 Cal.App.2d 738, 741–743, 51 Cal.Rptr. 116 [1966].) Furthermore, language of the Code fortifies court-instituted requirements that an agreement, whereby an employer agrees to indemnify a party against that party's own conduct, must expressly so provide.12

One reason for enactment of Labor Code, § 3864 is the preservation of the injured employee's rights. Absent such a code provision, his rights against a third party whose negligence injures him may be defeated by that party's rights of indemnity against the injured workman's employer. (Cf., Popejoy v. Hannon, supra, 37 Cal.2d at p. 173, 231 P.2d 484.)

We reverse the judgment for Associated under its cross-complaints for indemnity, and direct the trial court to enter judgments for Aaron, notwthstanding the verdicts against it.

III. Appeal of Cross-Complainant Able.

Able's cross-Complaints against Aaron for indemnity rested solely upon the terms of a writing. Among its provisions were these: ‘Lessee represents that he has examined said property and that the same is in good condition * * * Lessor is hereby released from any and all claims for damages to lessee, by reason of the use of said property: Lessee agrees to indemnify lessor from any and all claims for damages to any person or property by reason of the use of said leased property by lessee or any other person from date hereof until said property is returned to lessor.’

In appealing from the judgments in favor of Aaron, on Able's cross-complaints for indemnity, Able makes two contentions: (1) its two offered instructions to the jury were improperly refused; and (2) the court failed to give any instructions touching on Able's claimed rights of indemnity against Aaron.

The refused instructions are footnoted13 and it will be observed instruction No. 6 directs a verdict for Able against Aaron. Instruction No. 9 also so directs if Aaron violated any safety order, and irrespective of Able's conduct. The claimed propriety of each instruction is rested upon the Court of Appeal's opinion in Price v. Shell Oil Co., (reported at 272 A.C.A. 420, 77 Cal.Rptr. 475 [1969]; opinion on rehearing: 274 A.C.A. 599, 79 Cal.Rptr. 342 [1969]) which opinion allegedly stated the appropriate law at the time of our trial. However, a hearing was granted in Price and the appeal taken over (and decided by our Supreme Court, Price v. Shell Oil Co., supra, 2 Cal.3d 245, 85 Cal.Rptr. 178, 466 P.2d 722), thus rendering nugatory the decision of the Court of Appeal. (Ponce v. Marr, 47 Cal.2d 159, 161, 301 P.2d 837 [1956]; Knouse v. Nimocks, 8 Cal.2d 482, 483–484, 66 P.2d 438 [1937]; 3 Witkin, Cal. Procedure 2416–2417, ‘Appeal’ § 208.) The Supreme Court opinion is not supportive of either instruction. Conner v. Utah Constr. & Mining Co., 231 Cal.App.2d 263, 276–277, 41 Cal.Rptr. 728 (1964) also was cited by appellant as supportive of instruction No. 6, but it is not. Inasmuch as appellant directs us to neither evidence nor law obligating the trial court to have given the two instructions, we conclude their refusal was not error.

Appellant's second claim of error is that, even if the offered instructions properly were refused, it was, in any event, incumbent upon the trial court to frame instructions of its own, sua sponte, and read them to the jury to give it guidance in determining Able's rights of indemnity, if any, against Aaron. Failure of the trial court to do this is claimed to be error. While such a requirement exists, under certain circumstances, in California in the trial of criminal cases (generally, see: Witkin, Cal. Criminal Procedure [1963 ed.] 477–479, §§ 471, 472; Witkin [1969 Supp.] 255–256, §§ 471, 472) it has not been as broadly applied in civil trials. (See: 2 Witkin, Cal. Procedure 1780–1783, ‘Trial’ §§ 52–54.)

We find two parallel lines of cases, each of which seemingly ignores the other. The foundation case, for those decisions allegedly supporting appellant here, is Herbert v. Lankershim, 9 Cal.2d 409, at page 482, 71 P.2d 220, at page 256 (1937). The Supreme Court stated: ‘In the interest of a full and complete understanding of the law applicable to the case to was necessary that the jury be instructed on the major subjects raised by the pleadings even if a modification in this or other respects was required to make a more acceptable presentation of the law.’ This limited statement was relied upon in Jaeger v. Chapman, 95 Cal.App.2d 520, 213 P.2d 404 (1950) to greatly broaden the rule. There the Court of Appeal stated (p. 523, 213 P.2d p. 407): ‘Of course, although misleading, inaccurate or incomplete instructions need not be modified, it is incumbent on the trial court to give instructions on all vital issues in the case so that the jury will have a full and complete understanding of the law applicable to the facts, and if necessary to modify incomplete instructions or to give ones drafted by the court. Herbert v. Lankershim, 9 Cal.2d 409, 482, 71 P.2d 220.’ The broad rule of Jaeger was followed in Thomas v. Buttress & McClellan, Inc., 141 Cal.App.2d 812, 819, 297 P.2d 768 (1956); Jones v. Burgermeister Brewing Corp., 198 Cal.App.2d 198, 204, 18 Cal.Rptr. 311 (1961); Distefano v. Hall, 218 Cal.App.2d 657, 672–673, 32 Cal.Rptr. 770 (1963); Trejo v. Maciel, 239 Cal.App.2d 487, 498, 48 Cal.Rptr. 765 (1966) and Lysick v. Walcom, 258 Cal.App.2d 136, 157–158, 65 Cal.Rptr. 406 (1968). In the latter case, Lysick, the court stated (pp. 157–158, 65 Cal.Rptr. p. 420): ‘In the instant case it was incumbent upon the trial court properly to instruct the jury on the controlling legal principles applicable to the case so that the jury would have a complete understanding of the law applicable to the facts; and the court was not relieved of this responsibility even though faulty or inadequate instructions were submitted by the parties or instructions were not submitted by the parties on the vital issues at all.’

Opposed to these is the second line of cases, one of the earliest of which (Gould v. Samuels, 132 Cal.App.2d 459, p. 469, 282 P.2d 566, 573 [1955]) flatly states: ‘A party may not complain of a trial court's failure to instruct upon a subject upon which no proper instruction was requested.’ While that Court of Appeal cited a number of earlier decisions, a review of them does not convince us that they ate fully supportive of the statement. Thereafter came Hyde v. Avalon Air Transport, Inc., 243 Cal.App.2d 88, p. 93, 52 Cal.Rptr. 309, 312 (1966) wherein the court stated: ‘Plaintiff cites the general rule stated in a number of cases * * * that a litigant is entitled to have the jury instructed on all theories of the case which find support in the pleadings and the evidence. No one questions this fundamental right. It is, however, just that, a right—a right the litigant has the privilege of exercising in a civil action. It was not the duty of the trial judge to sift the evidence and research the law in order to determine every possible theory the pleadings and the evidence of each party might suggest, and to compose instructions to cover them. That duty rests on the attorneys in civil cases. * * * ‘A party may not complain of the trial court's refusal to give an instruction unless he requests it specifically and it is not objectionable upon any grounds.’'

The rule expressed in Gould, supra, was followed in Linzsey v. Delgado, 246 Cal.App.2d 504, 509, 54 Cal.Rptr. 762 (1966). Later, in Gagosian v. Burdick's Television & Appliances, 254 Cal.App.2d 316, p. 318, 62 Cal.Rptr. 70, 72 (1967), we find this language: ‘The state is under no duty to provide counsel for private litigantes in civil cases. There is neither reason nor justification for compelling a trial judge to act as a sort of advisory or ‘backup’ counsel, with all the frustration of the employed attorneys' trial strategy and tactics which such a holding could encompass.' And in Switzer v. State of California, 269 Cal.App.2d 627, 635–636, 75 Cal.Rptr. 371, 377 (1969) it is said: ‘In a civil case such as this each of the parties must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court owes no duty to instruct on its own motion. * * * [1b] The trial judge did not owe a duty to prepare the complicated instruction which the appellants now apparently have in mind * * *.’

In other jurisdictions there is an apparent division of opinion. (Merrihew v. Goodspeed [1929] 102 Vt. 206, 147 A. 346; Jeffords v. Florence County [1932] 165 S.C. 15, 162 S.E. 574; Donnelly v. Larkin [1951], 327 Mass. 287, 98 N.E.2d 280; Wheat's Adm'r v. Gray [1949] 309 Ky. 593, 218 S.W.2d 400; Bennett v. Robertson [1935] 107 Vt. 202, 177 A. 625; 53 Am.Jur. 412–417, ‘Trial’ §§ 510–514; 88 C.J.S. 1055–1057, 1149–1151, ‘Trial’ §§ 309, 424.) In Donnelly, supra, it was observed that the rules of court in Massachusetts required that a request be made in writing for instructions. It held, however, that failure to instruct adequately, where attention of the trial court has been directed to the omission, may be reviewed on appeal ‘if necessary to render substantial justice.’ Under the rule just stated, the appealing party must have directed the attention of the trial court to its omission, presumably so that it might correct any oversight. Having done so, an appellate court was authorized to consider the failure to instruct, but only for the purpose mentioned.

Approaching our own case, we have noted that appellant's theory at trial was of entitlement to a directed verdict, either outright or in event Aaron violated various safety orders. No instructions were submitted embodying any other claim or position and we are not informed just what instructions appellant believes the trial court should have given; Able did not enlighten the trial court nor does it enlighten us, its position apparently being the trial court should have ‘done something’; just what we are not told.

California procedural requirements are set forth in Code of Civil Procedure, §§ 607a and 608. Section 607a states in part: ‘In every case which is being tried before the court with a jury, it shall be the duty of counsel for the respective parties, before the first witness is sworn, to deliver to the judge presiding at the trial and serve upon opposing counsel, all proposed instructions to the jury covering the law as disclosed by the pleadings. * * * All proposed instructions shall be typewritten, each on a separate sheet of paper * * *.’

Section 608 in part reads: ‘In charging the jury the Court may state to them all matters of law which it thinks necessary for their information in giving their verdict * * *.’ In the past, this section contained mandatory language, stating: ‘In charging the jury the Court shall state to them all matters of law which it thinks necessary for their information in giving their verdict * * *.’ (Emphasis added.) By changing this language from the mandatory ‘shall’ to the permissive ‘may’ we conclude the Legislature intended to relieve the trial judge of any obligation to frame, sua sponte, jury instructions and intended to place this burden fully upon trial counsel. There are logical reasons for doing this, not the least of which is that the trial judge may not be privy to the strategy of trial counsel and aware of those points in his case which he considers to be weak and those which he intends to emphasize, supported by instructions on the pertinent law, in closing argument to the jury.

Under the circumstances of the present case we see no valid reason to require the trial judge to have drafted instructions on indemnity for the benefit of Able. Indeed from its failure to request instructions other than those submitted, we are free to conclude that Able intended to rely upon the Court of Appeal decision in Price, supra, and had no thought of arguing to a jury that rights of indemnity, based upon other legal theories, existed.

The judgments for plaintiffs against defendants Able and Associated are affirmed, as are the judgments in favor of Aaron and against Able on Able's cross-complaints. The orders denying Able's motions for judgments n. o. v. are affirmed.

The judgments in favor of Associated and against Aaron on Associated's cross-complaints against Aaron are reversed, the trial court being directed to enter judgments therein favoring Aaron. Aaron's appeals from the orders denying its motions for new trials are dismissed.


1.  Inasmuch as no appeal lies from an order denying a motion for new trial (Code Civ.Proc. § 904.1) such purported appeals are dismissed.

2.  Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968) now dilutes distinctions based upon the status upon the premises of person injured. To that extent, use of the restrictive term, ‘invitee,’ in Hard and Kuntz no longer be fully applicable.

3.  The only statement found. though concededly not dealing with equal protection, is to the contrary. Thus: ‘It is not essential to applicability of a safety order that any benefit be conferred by the injured worker or his employer on the party violating the order.’ Di Muro v. Masterson Trusafe Steel Scaffold Co., 193 Cal.App.2d 784, 791, 14 Cal.Rptr. 551, 555 (1961).

4.  The jury found that negligence on the part of Aaron also contributed to the accident (Witt v. Jackson, 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641 [1961]). In the judgments, the verdicts were deduced by the amount of compensation benefits paid to plaintiffs. The fact that concurrent negligence of a third party contributed to the accident, however, would not relieve Associated or Able from liability.

5.  On its own motion, the trial court instructed: ‘Violation of a safety order by an employee, of itself, is not contributory negligence as a matter of law and the standard of care applicable to such an employee is that he must as an ordinarily prudent man under the circumstances.’Appellants argue the phrase, ‘as a matter of law.’ May be interpreted in two ways : (1) the judge instructing the jury that As a matter of law, no violation of the subject safety orders by plaintiffs could constitute contributory negligence; or (2) the judge was instructing the jury that plaintiffs' violation of the safety orders could not establish negligence per se. We agree that the instruction is ambiguous and is not a model to be followed.

6.  The instruction reads ‘Defendant Associated is not responsible for violations, if any, of any safety orders or regulations relating to the scaffold, not for the construction, assembly, or method of using the scaffold.’

7.  BAJI No. 401 read: ‘In this ease plaintiff seeks to establish liability on different theories, one of which is breach of warranty on which I will now instruct you. A breach of warranty may be established without proof of negligence on the part of the defendant.’BAJI No. 403, as adapted, read: ‘Where the renter at the time of the renting has reason to know any particular purpose for which goods are required and that the rentee is relying on the renter's skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose.’

8.  BAJI No. 480 read: “Any warranty of the goods involved in this ease was based on the assumption that they would be used in a reasonable manner appropriate to the purpose for which they were intended. If you should find that whatever injury or damage the plaintiff suffered in this ease resulted solely from his improper use of the goods involved, then plaintiff cannot recover damages for breach of warranty.”The first paragraph of BAJI No. 411 read: ‘One who seeks recovery for breach of warranty may not recover damages for injuries proximately caused his use of a product which occurred after he obtained knowledge of the defect or condition which he claims constituted breach of warranty, unless you find that under the particular circumstances a person of ordinary prudence would have used the product despite knowledge of such defect or condition.’

9.  ‘Q Could you see what had caused it to tip over? Could you tell right away?‘A Well, I knew right away what caused it, because it had to be in the hole. The carpenters saw them move it. * * *‘Q Did you talk to this carpenter. Mr. Metzger?‘A No. I didn't * * * Smith. He was the one that talked to him and he told me about it.‘Q But you didn't have any conversation with the carpenter yourself?‘A No. I didn't have any conversation with him.’

10.  Evid.Code, § 791 reads: ‘Prior consistent statement of witness. Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after:‘(a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or‘(b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.’

11.  Evid.Code, § 771: ‘* * * if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of an adverse party and, unless the writing is so produced, the testimony of the witness concerning such matter shall be stricken.’

12.  Section 2782 et seq. of the Civil Code, although inapplicable because added in 1967 (after execution of the contract in question) further indicate the rigidity with which our Legislature views indemnity agreements in construction contracts.

13.  Special Instruction No. 6 read: ‘You are further instructed that in the event you found the defendants CARL STUBBLEFIELD AND WILLIAM BUTLER, DBA ABLE EQUIPMENT RENTAL liable to the plaintiffs that you must then find in favor of said defendants as cross-complainants and render a verdict in favor or cross-complainants CARL STUBBLEFIELD AND WILLIAM BUTLER, DBA ABLE EQUIPMENT RENTAL against the cross-defendant WILLIAM H. SMITH, DBA AARON ELECTRIC COMPANY.’Special Instruction No. 9 read: ‘You are further instructed that, in the event you find in favor of the plaintiffs and against the defendant ABLE EQUIPMENT RENTAL, but further find that the cross-defendant AARON ELECTRIC COMPANY used the scaffold in violation of any of the safety orders read to you and that such use was a proximate cause of the happening of the accident and plaintiffs injuries and damages, that you must then render a verdict in favor of cross-complainant ABLE EQUIPMENT RENTAL against cross-defendant AARON ELECTRIC COMPANY under the terms of the contract between them.’

DUNN, Associate Justice.

KINGSLEY, Acting P. J., and IRWIN, J.* concur.