SOLGAARD v. GUY ATKINSON COMPANY

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Court of Appeal, Fifth District, California.

A. L. SOLGAARD, Plaintiff and Respondent, v. GUY F. ATKINSON COMPANY, Defendant and Appellant.

Civ. 1254.

Decided: April 20, 1971

William J. Connolly, Jay R. Mayhall, San Francisco, for defendant-appellant. Walkup, Downing, Sterns & Poore, San Francisco, William B. Boone, Santa Rosa, D. Oliver Germino, Los Banos, for plaintiff-respondent.

A jury awarded plaintiff, a medical doctor, $78,212 for personal injuries received as a result of a fall while on defendant's construction site treating two of defendant's injured workmen on an emergency basis. The defendant appeals from the judgment entered on the verdict.

Involved are questions regarding the applicability of the rescue doctrine, alleged errors in instructions on safety orders, contributory fault and proximate cause, and, lastly, the applicability of the so-called general verdict rule to the facts herein.

Respondent filed his complaint upon two theories and proceeded at the trial on the same bases: (1) that the respondent doctor was entitled to the benefits of the rescue doctrine, and (2) that he was a business invitee upon the premises where he was injured.

Appellant was the general contractor with the federal Bureau of Reclamation for the construction of the Los Banos Creek Detention Dam, a portion of the San Luis Project, located about eight miles west of Los Banos in Merced County.

The project was being constructed in accordance with plans and specifications prepared by the federal Bureau of Reclamation.

As part of the job appellant company was in the process of constructing an 800-foot long spillway to handle overflow from the dam. In the construction process it was necessary to rip out a natural hill with earth-moving equipment, through very hard shale, down to the desired depth or grade of approximately 50 feet. In working with shale it is important to watch for weathering or air slacking. As loss of moisture or weathering causes shale to break and peel, one foot of earth was left in place above grade until the contractor was ready to pour the concrete. Shale, when moist as it was here, is quite slippery and will part within itself on a plane.

The concrete foundation of the spillway was laid in 35-foot sections, each containing a ‘cut-off trench’ that was approximately 30 inches deep. These trenches ran at right angles to the slope of the spillway.

The specifications called for anchor bolts or bars to be placed on the subgrade on the entire spillway slope, about 10 to 12 feet into the ground and about five feet apart. These anchor bolts or bars served two purposes: to hold the concrete to the sides and bottom of the spillway and to prevent slippage within the shale. Normally, the anchor bars are not placed until the one foot of overburden is taken off, but if dangerous conditions develop, the overburden could have been taken off afterwards. Immediately following the removal of the overburden the cement was to be poured.

A civil engineer testified that, due to the slope and general conditions to prevent slides and cave-ins, either an anchor bolt or a rock bolt should have been used prior to making any excavation of another cut-off trench when a chunk of material full off on another employee. As a result of the latter event, conversations occurred between the construction inspector for the Bureau of Reclamation and an employee of appellant concerning shoring up the trench wall to prevent such incidents, as a result of which the employee had agreed to do no more work in that area until anchor bars were put in. However, this was never done.

Respondent was one of many medical doctors in Los Banos who had verbally agreed to provide emergency medical care and treatment to employees injured on the above-described construction project.

On December 21, 1964, two of appellant's employees were digging one of these cut-off trenches on the bottom of the spillway when a mass of shale broke off the front of the slope on the upper side of the trench, slid down, and pinned the men in the trench. At about 2 p. m. on that date, respondent received a telephone call at his office in Los Banos from appellant that two of appellant's employees had been trapped in a rock slide.

Respondent immediately left for the construction site—eight miles distant—met appellant's safety man at the site and parked his car. The injured men were located about 15 to 20 feet down a very steep incline, and 10 to 15 feet out on the spillway floor. There appear to have been several alternative means to get to and from where the men were: (1) a pathway, which was sometimes used by appellant's personnel, (2) by use of notches cut in the bank to simulate steps, (3) by use of ropes anchored at the top of the slope extending to a point about even with the injured men, (4) a ladder, which was placed within two to five minutes after the respondent went down and which was used to carry the injured men up could have been so placed and used, and (5) by going over the side of the steep embankment. Appellant's safety man directed another employee to take respondent's bag and lead respondent down the slope. The route used ran over the steep embankment, and it was very steep and ‘very pebbly and gravelly.’ Respondent kept sliding and slipping, and about half way down the embankment he slipped and fell, resulting in the back injury for which this damage suit was filed.

The two employees were in critical condition. Both were treated as genuine emergencies at the site by the respondent despite his back injury. The leg of one of the injured employees was amputated at the site in order to disengage him from the rocks.

The respondent doctor was an invitee upon the premises at the time he fell and, as such, the appellant owed to him the special duties required for the protection of an invitee.1 (Mautino v. Sutter Hospital Ass'n (1931) 211 Cal. 556, 560, 296 P. 76; Philips v. Sun Best Fruit Distributors (1958) 160 Cal.App.2d 70, 75–76, 324 P.2d 948.)

The trial court correctly instructed the jury that the appellant had the duty to provide the respondent with a reasonably safe place to perform his services and to provide for him a reasonably safe means of entrance and exit, as an invitee, to perform the services of treating the injured workmen. The respondent was entitled to have the jury instructed on those Labor Code sections and safety orders enacted for the benefit and protection of an invitee in his position. (Porter v. Montgomery Ward & Co., Inc. (1957) 48 Cal.2d 846, 313 P.2d 854; Nunneley v. Edgar Hotel (1950) 36 Cal.2d 493, 497, 225 P.2d 497; Crain v. Sestak (1968) 262 Cal.App.2d 478, 486, 68 Cal.Rptr. 849; Hyde v. Avalon Air Transport, Inc. (1966) 243 Cal.App.2d 88, 92, 52 Cal.Rptr. 309.)

The instructions given on Labor Code, sections 6400 through 6404 and Safety Order 1540(i) were within the ambit of this rule and proper.2 Markley v. Beagle (1967) 66 Cal.2d 951, 59 Cal.Rptr. 809, 429 P.2d 129; Williams v. Pacific Gas & Elec. Co. (1960) 181 Cal.App.2d 691, 709, 5 Cal.Rptr. 585; Lokey v. Pine Mountain Lbr. Co. (1962) 205 Cal.App.2d 522, 531–532, 23 Cal.Rptr. 293; Gaw v. McKanna (1964) 228 Cal.App.2d 348, 353, 39 Cal.Rptr. 428.)

Appellant contends that respondent was not in the position of a rescuer and, therefore, was not entitled to the benefits of the so-called rescue doctrine. The rescue doctrine provides generally that, absent rashness or recklessness, one who is injured in undertaking a necessary rescue may recover from the person whose negligence created the situation necessitating the rescue. If the rescued person's negligence has created the peril to himself, he may be liable to the rescuer. (See cases collected in 4 A.L.R.3d 558.) Most of the cases involve attempts by the injured rescuer to recover from some third person whose negligence imperiled the victim and required the rescue. (See cases collected in 158 A.L.R. 189 and see, generally, Prosser on Torts, 3d ed., pp. 297 and 316.)

The appellate courts in this state have recognized the rule in both situations. (Scott v. Texaco, Inc. (1966) 239 Cal.App.2d 431, 48 Cal.Rptr. 785; Bilyeu v. Standard Freight Lines (1960) 182 Cal.App.2d 536, 6 Cal.Rptr. 65; Pierce v. United Gas and Electric Co. (1911) 161 Cal. 176, 118 P. 700.)

Reaching back to the genesis of the doctrine, we need go no farther than the case of Wagner v. International Ry. Co. (1921) 232 N.Y. 176, 133 N.E. 437, wherein Justice Cardozo, in his usual succinct, incisive and poignant prose stated, at pages 437 and 438:

‘Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid. [Citation.] The railroad company whose train approaches without signal is a wrongdoer toward the traveler surprised between the rails, but a wrongdoer also to the bystander who drags him from the path. [Citations.] The rule is the same in other jurisdictions. [Citations.] The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.’

That case was one wherein the rescuer (plaintiff), who was a relative of the rescued, sued the railroad for injuries received when he jumped off a train to assist the imperiled person who had fallen off the train as the result of negligent conduct of the train crew.

Appellant takes the position that the doctrine is inapplicable because respondent-doctor had agreed orally to attend and treat injured workmen on the job, and relies upon the cases of Giorgi v. Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355, 360, 72 Cal.Rptr. 119; Nastasio v. Cinnamon (Mo.1956) 295 S.W.2d 117, 120–121, and Krauth v. Geller (1960) 31 N.J. 270, 157 A.2d 129, 130–131. Giorgi was a consolidated action for the wrongful death of seven persons, whose job it was to fight fires and who were burned to death while fighting a fire which was allegedly caused by the negligence of the defendant. In refusing to apply the rescue doctrine, the court quotes from Krauth v. Geller, supra, and states at page 359, of 266 Cal.App.2d, at page 123 of 72 Cal.Rptr.:

“[t]he question is ultimately one of public policy, and the answer must be distilled from the relevant factors involved upon an inquiry into what is fair and just.

‘He concludes ([157 A.2d] p. 131) ‘it is the fireman's business to deal with that very hazard and hence, perhaps by analogy to the contractor engaged as an expert to remedy dangerous situations, he cannot complain of negligence in the creation of the very occasion for his engagement. In terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid. Probably most fires are attributable to negligence, and in the final analysis the policy decision is that it would be too burdensome to charge all who carelessly cause or fail to prevent fires with the injuries suffered by the expert retained with public funds to deal with those inevitable, although negligently created, occurrences. Hence, for that risk, the fireman should receive appropriate compensation from the public he serves, both in pay which reflects the hazard and in workmen's compensation benefits for the consequences of the inherent risks of the calling.”

We do not regard Giorgi and the line of cases upon which that case is based, involving firefighters, as controlling in the case at bench. The agreement of the respondent herein was to medically treat the injured employees, and those were the only services for which he was engaged. The inherent risks and precise hazards of that calling would be those associated therewith. Certainly, a doctor under such circumstances, would not be entitled to the benefits of the rescue doctrine should he cut himself with an operating instrument during the course of an operation or become asphyxiated with an anesthetic or damaged from X-ray, as these are risks and hazards inherent in the precise services for which he is engaged. However, this does not preclude the respondent doctor from recovering from incidental injuries not primarily connected with medical treatment or services, such as those involved here. To hold the rescue doctrine not applicable would have an inhibiting effect upon the performance of such desirable undertakings.

All of the cases cited by appellant recognize that even a fireman, engaged in the performance of his duty, may recover from a property owner while fighting a fire if the source of the injury is a condition or risk not directly related to fighting the fire but only incidental thereto. In Krauth v. Geller, supra, 157 A.2d at page 131, the court sets forth several instances of recovery being permitted under such circumstances such as injury from storage of dangerous material, failure to guard an elevator shaft, failure to warn of hidden perils, and failure to exercise due care with respect to conditions and places intended as means of access by the firemen.

Bilyeu v. Standard Freight Lines, supra, 182 Cal.App.2d 536, 6 Cal.Rptr. 65, is consistent with the conclusion expressed herein. In that case, a California Highway Patrol Officer injured his back while physically moving steel rolls, which constituted a traffic hazard, off the highway. They had fallen off of a truck as the result of negligent operation of the truck by the defendant. The officer was permitted to maintain an action against the defendant truck driver for the back injury, even though he was on duty at the time.

Appellant foresees by this holding the exposure of defendants to open-ended liability extending to times and places remote from the actual site of the rescue. But our holding here involves the application of the doctrine to the facts of this case, on the premises where the rescue occurred, and we leave for the future the adjudication of the extent of the duty on a case by case basis. As was stated in Dillon v. Legg, 68 Cal.2d 728, at 740, 69 Cal.Rptr. 72, at 80, 411 P.2d 912, at 920:

‘Since the chief element in determining whether defendant owes a duty or an obligation to plaintiff is the foreseeability of the risk, that factor will be of prime concern in every case. Because it is inherently intertwined with foreseeability such duty or obligation must necessarily be adjudicated only upon a case-by-case basis. We cannot now predetermine defendant's obligation in every situation by a fixed category; no immutable rule can establish the extent of that obligation for every circumstance of the future. * * *’

Having held the principle of rescue applicable to respondent, two fundamental concepts necessarily follow: First, the respondent may establish a primary negligence by appellant toward the person rescued (in this instance it is the two trapped employees), which will, if proven, give rise to an independent duty toward the rescuer himself (respondent herein.) (Prosser on Torts, 3d ed. (1964) pp. 316–317, pp. 297–298; Pierce v. United Gas and Electric Co., supra, 161 Cal. 176, 188, 118 P. 700.) An analogy is found in the primary duty owed to the injured child by a negligent tort-feasor as related to the duty owed by the same tort-feasor to the emotionally-shocked mother who witnesses the accident, even though the mother is not within the zone of physical danger to herself. (Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912.)

The second legal result in holding the rescue doctrine applicable is the effect it has upon the doctrine of contributory fault on the part of the respondent. Before such fault will bar a recovery, plaintiff's conduct must amount to rashness or recklessness. The standard was stated in Scott v. Texaco, Inc., supra, 239 Cal.App.2d 431, at 434, 48 Cal.Rptr. 785, at 787–788:

‘The point she brings before us involves an exception to the general rule that a plaintiff's own negligence which contributes in any way to an accident bars recovery for damages against a negligent defendant. Under the exception, a plaintiff injured while attempting to rescue someone else from danger is not bound to a standard of ordinary care but may be allowed to assume extraordinary risks and to perform acts which might be considered negligent in other circumstances.

‘Essentially, the rescue rule expands the risks which a rescuer may properly take in order to save a third person in danger from harm. Conduct which ordinarily might be held negligent may not necessarily be so considered when performed by a rescuer in an effort to save another from bodily injury. [Citations.] It has been said that only conduct which amounts to rashness and recklessness will defeat the right of a rescuer to recover for personal injuries against a negligent defendant. [Citation.] ‘It seems quite clear that the rule in question is quite different from the ordinary rules of contributory negligence with respect to the degree of care required of the acting party. In the ordinary case any negligence, no matter how slight, will defeat recovery but in this exceptional case such negligence must amount to rashness or recklessness. As was said in Eckert v. Long Island R. R. Co., 43 N.Y. 502 [3 Am.Rep. 721]: ‘The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons.’''

(See also 65A C.J.S. Negligence § 124, pp. 83–85.)

Applying these legal principles to the law by which the court told the jury they were to guide their deliberations, we find several areas of error. The court instructed on certain safety orders which were not actually in effect at the time of the incident in question, and which, by their terms, could have been applicable only to establishing primary negligence of appellant to its injured employees. Attached as Appendices I (Safety Order 1540) and II (Safety Order 1546) are these orders.

Under the rule of Nunneley v. Edgar Hotel, supra, 36 Cal.2d 493, 225 P.2d 497, and other cases cited above, these regulations could have had no possible application to the establishment of direct primary duty to the respondent, but they could have applied only to the establishment of a duty to the injured employees of appellant.3 The court did not so limit the application of these safety orders, nor did it instruct that violation thereof had to be a proximate cause of injury to the employees, and though it referred in its instructions to having defined the rescue doctrine to the jury (see fn. 5), the court, in fact, never did define it. The court merely instructed with respect to all of the code sections and safety orders that:

‘If you find that a party to this action violated a Labor Code Section or Safety Order just read to you, you will find that such violation was negligence unless you find by a preponderance of the evidence that the party did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.’

Thus, the jury could have interpreted these orders as establishing a primary duty to respondent.

Since these safety orders were not in effect at the time of the accident, they were not relevant to appellant's standard of conduct, and it was therefore error to have given them. (Akins v. County of Sonoma (1967)) 67 Cal.2d 185, 194, 60 Cal.Rptr. 499, 430 P.2d 57.) The giving of Safety Order 1546 was prejudicial because it was not substantially similar to Safety Orders 1526 and 1527, which orders were actually in effect at the time, and each of the provisions of Safety Order 1546, actually read, did have a direct and critically important bearing upon the establishment of negligent misconduct on the part of appellant. For example, it required appellant to make a daily physical inspection; it required the employment of a fulltime trained employee at the face of the excavation to give warning of loose material; it required that the employee be provided with a whistle, siren or other device to give adequate warning to employees; and it required the employee to have no other work to distract his attention from his duties in giving the warning defined. None of these requirements were part of Safety Orders 1526 or 1527, the orders which were actually in effect at the time.

While the court instructed the jury that a plaintiff who is found to be a rescuer is held only to a standard of recklessness and rashness,4 at a later point in defining the issues the court eliminated the question of contributory fault on the part of the respondent altogether and, in effect, directed a verdict for the plaintiff should the jury find that the defendant was negligent and that such negligence proximately caused injury to the plaintiff.5 The two instructions set forth in footnote 4 and footnote 5 were thus in fatal conflict. Further, under the evidence in the record the question of whether respondent's conduct amounted to such degree of contributory fault; as to bar recovery by respondent was an issue of fact for the jury. It was prejudicially erroneous to have instructed the jury in the manner indicated, because it deprived appellant of a jury determination of a critical and basic issue essential to recovery by respondent. (Clement v. State Reclamation Board, 35 Cal.2d 628, 644, 220 P.2d 897; Phillips v. G. L. Truman Excavation Co., 55 Cal.2d 801, 808, 13 Cal.Rptr. 401, 362 P.2d 33.)

Appellant complains of the court's failure to instruct on Safety Order 1540, subdivisions (c) and (d), having given only Safety Order 1540, subdivision (b), and that the giving of subdivisions (c) and (d) was essential to a meaningful understanding of subdivision (b). But the rule in Ornales v. Wigger (1950) 35 Cal.2d 474, 478, 218 P.2d 531 (overruled in an unrelated point), and Linzsey v. Delgado (1966) 246 Cal.App.2d 504, 509, 54 Cal.Rptr. 762, precludes appellant from raising this objection on appeal because the additional clarifying instructions were not requested by it. In Ornales, 35 Cal.2d at page 478, 218 P.2d at page 534, it is stated:

‘* * * Ordinarily, before an appellant may complain of the lack of an instruction, he must have made a request that the charge be made more specific, or ask for qualifying instructions. This general rule is apparently qualified by the rule that an appellant may complain, in the absence of such request, where the instruction given erroneously states the applicable law and prejudice is suffered thereby.’

Respondent alludes to the generalverdict rule as requiring an affirmance. He states the rule to be that when there is a general verdict and a plaintiff has sued on two causes of action or theories of recovery, the judgment for the plaintiff must be affirmed if one of the causes of action or theories is supported by substantial evidence and is unaffected by error, even though there are errors with respect to the other cause of action. he cites, among others, Tucker v. Landucci (1962) 57 Cal.2d 762, 22 Cal.Rptr. 10, 371 P.2d 754; Gillespie v. Rawlings (1957) 49 Cal.2d 359, 317 P.2d 601; and Rawlings v. Harris (1968) 265 Cal.App.2d 452, 454, 71 Cal.Rptr. 288.

Assuming, however, that the rule is correctly set forth, a recent expression of the Supreme Court commands a nonrigid, flexible application therof. See Warner Constr. Corp. v. City of Los Angeles, 2 Cal.3d 285, at page 300, footnote 18, 85 Cal.Rptr. 444, at page 453–454, 466 P.2d 996, at pages 1005–1006, where the court states:

‘The jury rendered a general verdict against defendant, and some cases hold that ‘even though the evidence may not be sufficient to sustain a cause of action * * * a reversal may not be had upon that ground if the evidence as to other causes of action * * * is sufficient to sustain the verdict.’ [Citations.] Other cases, however, warn that ‘(w)here it seems probable that the jury's verdict may have been based (on error) prejudice appears and this court ‘should not speculate upon the basis of the verdict.’' [Citations.] Neither formula permits us to shortcut our constitutional duty to examine the entire record to determine whether the error has resulted in a miscarriage of justice.'

Further, the doctrine requires that one of the theories upon which the judgment may be affirmed be ‘unaffected by error.’ Here, the court failed to adequately define the rescue theory to the jury. The erroneous instructions on Safety Orders 1540 and 1546, insofar as the jury was apprised, applied to both the invitee theory and the rescue theory. Likewise, the instruction on the Labor Code sections and Safely Order 1540(i) (see fn. 2, supra) pertained only to the invitee theory, and not to the rescue theory, but the jury was not so advised. The two theories were thus hopelessly confused, and the prejudice suffered by appellant in the giving of these instructions in this manner, infectiously pervades the entire case.

A review of the whole record persuades us that it is reasonably probable that absent the erroneous instructions and other errors a different result would have followed. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243; Hoyt v. Los Angeles Metropolitan Transit Authority (1962) 210 Cal.App.2d 534, 26 Cal.Rptr. 666.) The case of Stockstill v. South Laguna Disposal Co. (1969) 1 Cal.App.3d 1022, 82 Cal.Rptr. 268, is controlling. In that case, at page 1028, 82 Cal.Rptr. at page 271, it is said:

‘Where it seems probable that the verdict may have been based on an erroneous instruction, prejudice appears and the reviewing court should not speculate on the basis of the verdict.’

The judgment is reversed.

Appendix

SAFETY ORDERS

Order read to jury:

1540

(a) Exposure. No employer shall cause or permit his employees to work in or adjacent to any excavation until a reasonable examination of same has been made to determine that no conditions exist exposing them to injury from moving ground.

(b) Guarding. The walls and faces of all excavations which expose workmen to danger from moving ground shall be effectively guarded by a shoring system, sloping of the ground, or other equivalent means.

(i) Access. Convenient and safe means shall be provided for workmen to enter and leave the excavated area. This shall consist of a standard stairway, ladder, or ramp securely fastened in place at suitably guarded or protected locations where men are working and normally will not need to move farther than 50 feet to reach such access. (RT. 423)

Order actually in effect:

1526

(a) Exposure. No employer shall cause or permit his employees to work in or adjacent to any excavation until a reasonable examination of same has been made to determine that no conditions exist exposing them to injury from moving ground.

(c) Guarding. The walls and faces of all excavations which expose workmen to danger from moving ground shall be effectively guarded by a shoring system, sloping of the ground, or other equivalent means.

(j) Access. Convenient and safe means shall be provided for workmen to enter and leave the excavated area. This shall consist of a standard stairway, ladder, or ramp securely fastened in place at locations such that workmen will normally not need to move farther than one hundred feet (100′) to reach such access.

SAFETY ORDERS

Order read to jury:

1546

(a) A daily physical inspection shall be made of faces and banks, including the tops, where men are exposed to falling or rolling materials. The inspection shall be made by a competent man who shall dislodge or make safe any material dangerous to employees, or shall cause material to be dislodged or made safe.

(b) Person shall be permitted to work near a face made unsafe by rains until the face has been inspected and made safe.

(d) Where necessary, a competent trained employee shall be employed at the face, to give warning when loose rock or other materials are about to fall.

The employee shall be provided with a whistle, siren, or other devices that will give adequate warning to employees.

The employee shall have no other work to distract his attention from his duties as defined above.

Order actually in effect:

1526

(b) Survey. Prior to the start of excavation work, the employer shall make a thorough survey of the conditions of the site to determine, so far as is practicable, the predictable hazards to employees and the kind and extent of safeguards necessary to prosecute the work in a safe manner.

(h) Supervision. Excavation work shall at all times be under the immediate supervision of someone with authority to modify the shoring system or work methods, as necessary, to provide greater safely. He shall frequently examine the material under excavation and improve the shoring or methods beyond the minimum requirements, as necessary, to insure protection of workmen from moving ground.

1527 Trenches.

(a) General. All trenches five feet (5′) or more in depth, in all types of earth, shall be effectively guarded against the hazard of moving ground as hereinafter provided. Trenches less than five feet (5′) in depth shall also be so guarded when examination indicates that hazardous ground movement may be expected. (See Fig. 35 in Appendix)

FOOTNOTES

1.  The holding in Rowland v. Christian (1968) 69 Cal.2d 108, 118–119, 70 Cal.Rptr. 97, 443 P.2d 561, does not change the duties owed to the an invitee. (Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 77 Cal.Rptr. 914.)

2.  Under Labor Code, sections 6400 through 6404 every employer shall furnish employment and a place of employment which are safe for the employees therein (§ 6400); every employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe (§ 6401); no employer shall require or permit any employee to go or be in any unsafe place of employment (§ 6402); no employer shall neglect to provide, adopt and use safety devices and safe working conditions and methods (§ 6403); and no employer shall occupy or maintain any place of employment that is not safe (§ 6404).Safety Order 1540(i) in substance requires an employer to provide convenient and safe means for workmen to enter and leave the excavated area to consist of a standard stairway, ladder or ramp securely fastened in place at suitably guarded or protected locations where men are working.

3.  Excepted from this statement is Safety Order 1540(i) heretofore referred to in footnote 2.

4.  The instruction reads:‘The ordinary rules of contributory negligence do not apply to any person who is attempting to rescue others. A person injured while attempting to rescue someone else from danger is not bound to a standard of ordinary care. Such a person may be allowed to assume extraordinary risks and to perform acts which might be considered negligent in other circumstances, provided only that his conduct does not amount to rashness or recklessness.‘Where human life is in danger, a person who takes such steps as are reasonably necessary to rescue or protect the persons imperiled is not contributorily negligent in voluntarily leaving a place of safety or in remaining in a place of danger if he does not act with a recklessness which would not be warranted, under the circumstances, in the judgment of a prudent man faced with the same or similar situation.’

5.  The instruction reads:‘The issues to be determined by you in this case are these:‘First: was the defendant negligent? If you answer that question in the negative, you will return a verdict for the defendant. If you answer it in the affirmative, you have a second issue to determine, namely:‘Was that negligence a proximate cause of any injury to the plaintiff: if you answer that question in the negative, plaintiff is not entitled to recover, but if you answer it in the affirmative, you then must find on a third question:‘Was the plaintiff a rescuer as I have defined that term to you. If you find that he was, and if you have found affirmatively on the first two issues to be determined, then you must fix the amount of plaintiff's damages, and return a verdict in his favor.‘If you find that plaintiff was not a rescuer as I have defined the term to you, then you must determine a fourth issue or question which is:‘Was the plaintiff negligent?’

GEO. A. BROWN, Associate Justice.

STONE, C. J., and GARGANO, J., concur.