DINGMAN v. MATTOCK CO (1939)

Plaintiff, a subcontractor, sued defendant, the general contractor, seeking damages for personal injuries sustained when plaintiff fell to the bottom of an open stairwell in a dwelling house which was under construction. Upon a jury trial, plaintiff had judgment, from which judgment defendant appeals.

The construction of the dwelling house had progressed to the point where the framework and roof had been completed. The plumbers and electricians were on the job and the lathers were due to commence their work very shortly. The stairs had not as yet been built into the stairwells.

Plaintiff sustained his injuries while endeavoring to make the ascent from the kitchen level to the maid's room level on a piece of “two by four” scantling placed across the open stairwell, one end of which scantling rested upon the kitchen floor and the other end of which rested upon the maid's room floor. The scantling broke and plaintiff fell to the basement.

It appears from the evidence that the maid's room level was not a full story above but only four feet, nine inches, above the kitchen level. The maid's room was over the garage, the level of which garage was perhaps a similar distance below the kitchen level. Directly under the kitchen was the basement, the level of which basement was perhaps three or four feet below the garage level.

The maid's room was accessible from the back of the house. Some of the workmen had also used certain cleats nailed upon the studdings in the kitchen as well as a portable ladder for the purpose of gaining access to the maid's room from the kitchen through the spaces between the studdings. There was a conflict in the evidence as to whether the above-mentioned cleats had been removed prior to the accident and there was also a conflict as to whether there was any portable ladder in the kitchen at the time of the accident. There was a further conflict as to whether the scantling involved in the accident had been previously used by others for the purpose of making the ascent through the open stairwell.

On the day of the accident, plaintiff, who had the subcontract for the electrical work, desired to consult defendant's foreman in connection with some electrical work which was to be done in the garage. Defendant's foreman was in the maid's room and plaintiff was in the kitchen. Plaintiff started to go to the maid's room by ascending the loose scantling laid across the open stairwell. According to his testimony there was loose lumber and other building materials on the floors of the house and elsewhere and this particular scantling, which was resting at an angle of about forty or forty-five degrees across the stairwell, was not nailed in any way. He nevertheless assumed to make the ascent by this means, carrying some materials in one hand and holding on to the studdings at the side of the stairwell with the other. The scantling on which he was walking broke and his injuries resulted.

On this appeal numerous points are urged by appellant but the main contention is that the evidence was insufficient to sustain the verdict. In our opinion, this contention must be sustained and it therefore becomes unnecessary to discuss the points relating to alleged prejudicial error in the charge to the jury.

The rules governing the liability of those in possession of premises to those entering the premises by invitation have been frequently stated and the authorities are cited and discussed in 20 Ruling Case Law, page 55 et seq., sections 51 and 52. The true ground for imposing liability is there set forth and thereafter it is said on page 57, “And, hence, there is no liability for injuries from dangers that are obvious, or as well known to the person injured as to the owner or occupant.” The foregoing text is quoted with approval in Mautino v. Sutter Hospital Association, 211 Cal. 556, at pages 560 and 561, 296 P. 76 and similar statements are found in other cases arising in this jurisdiction. In Shanley v. American Olive Company, 185 Cal. 552, at page 555, 197 P. 793, at page 794, the court said, “A person * invited upon the premises of another may recover from such owner ‘for any injuries received owing to the dangerous condition of the premises known’ to the owner and not known to the person so invited *. If there is a danger attending upon such entry, or upon the work which the person invited is to do thereon, and such danger arises from causes or conditions not readily apparent to the eye, it is the duty of the owner to give such person reasonable notice or warning of such danger. But such owner is entitled to assume that such invitee will perceive that which would be obvious to him upon the ordinary use of his own senses. He is not required to give the invitee notice or warning of an obvious danger.” Again in Blodgett v. B.H. Dyas Co., 4 Cal.2d 511, 50 P.2d 801, at page 802, the court said, “He is not liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care.” The foregoing rules, which were applied in the above-mentioned cases to situations involving completed structures and premises, have also been applied to situations involving buildings under construction or repair. Ambrose v. Allen, 113 Cal.App. 107, 298 P. 169; Slyter v. Clinton Constr. Co., 107 Cal.App. 348, 290 P. 643; Cole v. L.D. Willcutt & Sons Co., 218 Mass. 71, 105 N.E. 461; Doremus v. Auerbach, 176 App.Div. 512, 163 N.Y.S. 239; Gainey v. Peabody, 213 Mass. 229, 100 N.E. 336; White v. E. & F. Const. Co., 110 Conn. 692, 147 A. 17; Decatur v. Chas. H. Tompkins Co., 58 App.D.C. 102, 25 F.2d 526. It is apparent that the reason for the application of the rule is even greater in the last-cited cases as buildings under construction or repair ordinarily present many obvious dangers to those who may be in or about such buildings.

In the instant case, the danger of ascending from one level to another on a small, loose scantling resting across an open stairwell should have been obvious to anyone and particularly to respondent, who had been an electrical contractor for more than twenty years. It is a matter of common knowledge that a scantling is designed for vertical weight bearing and not for horizontal weight bearing and that an unnailed and unbraced scantling presents a hazardous means of crossing an open stairwell. The danger was not one which was concealed and was not one of which appellant had superior knowledge. On the contrary, respondent testified on cross-examination that he “had no difficulty in seeing”; that he could see that stairwell was open and that the stairs had not been installed; and that “the condition of the studding, and the two by four lying there, and everything was all open and visible”. Under the rules set forth in the foregoing authorities, it appears that the evidence was insufficient to show negligence on the part of appellant as there was nothing to show a violation of any duty owing by appellant to respondent. In this connection, however, respondent calls attention to an order of the industrial accident commission, introduced in evidence, relating to “runways”. There is nothing in this order which required “runways” at all stages of construction and the order merely sets forth certain specifications for “inclined runways, where erected for the use of workmen”. There is no showing here that any “runway” was “erected” for any purpose. All that appears is that a loose scantling had been placed across the stairwell between the two levels by some unidentified person and that some of the workmen had walked upon it. In our opinion, this showing was insufficient to show a violation by appellant of the above-mentioned order.

But in any event, we do not believe that respondent may recover even if it be conceded that there was some evidence of negligence on the part of appellant. It is contended by appellant that the uncontradicted evidence showed as a matter of law that respondent assumed the risk and that he was guilty of contributory negligence. We are of the opinion that this contention must be sustained. The doctrine of assumption of risk and the doctrine of contributory negligence are closely related and they are frequently discussed together. They are nevertheless separate and distinct doctrines (Miner v. Connecticut River R. Co., 153 Mass. 398, 26 N.E. 994), and there appears to be a particularly appropriate field for the application of the doctrine of assumption of risk in those cases where one enters upon the premises of another and encounters obvious dangers resulting from construction activities. See Restatement, Torts, secs. 340 and 341. These doctrines have been applied, either separately or together, under various circumstances. Mautino v. Sutter Hospital Assoc., 211 Cal. 556, 296 P. 76; Quinn v. Recreation Park Association, 3 Cal.2d 725, 46 P.2d 144; Blodgett v. B.H. Dyas Co., 4 Cal.2d 511, 50 P.2d 801; Ambrose v. Allen, 113 Cal.App. 107, 298 P. 169; Slyter v. Clinton Constr. Co., 107 Cal.App. 348, 290 P. 643; Gleason v. Fire Protection Engineering Co., 127 Cal.App. 754, 16 P.2d 750; Campion v. Chicago Landscape Co., 295 Ill.App. 225, 14 N.E.2d 879. As appears from some of the authorities cited, whenever the only logical conclusion to be drawn from the uncontradicted evidence is that the injured person either assumed the risk or was guilty of contributory negligence, the question becomes one of law rather than one of fact and the injured person cannot prevail. Considering the uncontradicted evidence in the present case, we see no escape from the conclusion that respondent did assume the risk and that he was guilty of contributory negligence as a matter of law.

The judgment is reversed.

SPENCE, Justice.

We concur: NOURSE, P.J.; STURTEVANT, J.