DEVENS v. GOLDBERG (1948)

The jury awarded plaintiff a judgment against defendant in the sum of $10,000. The court thereafter granted judgment notwithstanding the verdict in favor of defendant, on the grounds, first, of insufficiency of the evidence to support the verdict, and secondly, that the only stated cause of action in plaintiff's complaint was ‘barred by a complete defense thereto established by uncontradicted evidence,’ namely, a certain final award of the Industrial Accident Commission.

Plaintiff was injured on January 15, 1944, while serving as a part-time domestic employee in the home of the defendant. The Industrial Accident Commission, on plaintiff's application, found that she and her employer, the defendant, were both subject to the provisions of the California Workmen's Compensation Insurance and Safety Act (re-enacted as section 3700 et seq. of the Labor Code, but for clarity referred to herein as the Workmen's Compensation Act); that defendant had wilfully failed to insure with respect to her employment and her injury, and that her injury arose out of and in the course of her employment. The commission denied defendant's petition for a rehearing and he thereupon filed a petition for a writ of review with the District Court of Appeal.

While that petition was pending, plaintiff filed this action. The complaint is entitled ‘Complaint for Damages against Willfully Uninsured Employers.’ The complaint sets forth a single cause of action based upon the theory that both parties are subject to the Workmen's Compensation Act, that defendant had violated the terms of the act in failing to insure, that plaintiff was injured in the course of her employment through the negligence of defendant in negligently maintaining a defective porch railing at the defendant's home where plaintiff worked, that due to such negligent maintenance of said railing, it gave way and plaintiff fell from the porch to the ground, receiving injuries for which she was asking damages; also attorney's fees. The complaint also sets up the finding of the commission hereinbefore mentioned.

After the filing of the complaint herein, the District Court of Appeal in Goldberg v. Pacific Employers Ins. Co., 70 Cal.App.2d 472, 161 P.2d 272, held that because plaintiff did not work 52 hours per week for defendant, neither she nor her employment came within the provisions of the Workmen's Compensation Act, and annulled the finding of the commission. Thereupon the Industrial Accident Commission amended its findings to the same effect. That determination has become final.

Defendant amended his answer in which he denied any negligence whatever and that either plaintiff or he were subject to the provisions of the Workmen's Compensation Act, by adding to it the decision in Goldberg v. Pacific Employers, Ins. Co., supra, and the amended findings of the commission.

On this state of the pleadings the case went to trial. An examination of the record discloses clearly that the case was tried by the plaintiff, and submitted to the jury by the court, on a different theory than that on which the complaint was based, namely, that the parties no longer claimed to be included within the terms of the act, but that defendant, as the employer, was liable, not under the act, but because of negligence in failing to provide defendant with a safe place to work. Throughout the trial, defendant objected to such a theory as not being within the pleadings, moved for a nonsuit at the end of plaintiff's case, and at all times insisted that the plaintiff had not made out a case as alleged, and that defendant had made out a complete defense to the cause of action as alleged.

Disregarding the allegations in the complaint concerning the application of the Workmen's Compensation Act and the failure of the defendant to insure, the complaint does state a cause of action based on common-law negligence, which requires an employer to provide his employee (regardless of the Workmen's Compensation Act) with a reasonably safe place to work. 16 Cal.Jur. 995. Moreover, the defendant's answer set up the fact that the District Court of Appeal had determined and the commission found that the parties did not come within the Workmen's Compensation Act. The plaintiff did not dispute this. It was no longer an issue in the case. While the defendant contended that that ended the case, the court held, in effect, that the complaint was broad enough to include a general cause of action in negligence, and the case was tried and presented to the jury on that issue. While the pleadings should have been amended to conform to the proofs, and defendant given (had he asked for it) an opportunity to plead and prove such defenses as he might have to the cause of action as actually tried (for example, comparative contributory negligence of plaintiff, secs. 2700 and 2801, Labor Code,) since the case was submitted to the jury on the negligence theory, the most the court thereafter should have done was to grant a new trial and get the pleadings in proper shape.

The court instructed the jury upon the negligence theory. Defendant did not offer any instructions on comparative contributory negligence, apparently because of his insistence that the jury be instructed that the plaintiff had failed to make out a case of included non-insured employer as alleged; moreover, it is doubtful if the facts here showed any contributory negligence on the part of plaintiff. See Crabbe v. Mammoth Channel Gold Mining Co., 168 Cal. 500, 503, 143 P. 714. A court which permits the case to be tried and submits it to the jury under proper instructions based upon one theory, is not justified in granting a judgment notwithstanding the verdict because the complaint was originally drawn on a different theory, particularly when the submitted theory is included in the complaint as drawn.

In Mannon v. Pesula, 59 Cal.App.2d 597, 139 P.2d 336, this court held that the fact that a complainant pleads an erroneous theory does not bar him from recovery, if his pleading contains facts to support a proper theory of recovery. There can be no question here but that plaintiff pleaded sufficient facts to justify a recovery by an employee from her employer for injuries received in the scope of her employment through the alleged negligence of the employer in failing to provide her a safe place of employment. The allegations to the effect that both parties are subject to the provisions of the Workmen's Compensation Act and the failure of defendant to insure may be, and were, by the court, considered surplusage at the time of submission of the case to the jury. The complaint was in the same situation as the complaint in Cass v. Ocean Park Bath Co., 45 Cal.App. 656, 188 P. 616. There the allegations of the complaint (45 Cal.App. at page 658, 188 P. at page 617) ‘were such as to present two theories, upon either of which recovery might be had, and while the findings as to one [conversion] are adverse, they are as to the other in favor of plaintiff, and hence judgment should follow thereon in his favor.’ While, from a strict pleading standpoint, the two causes of action which the facts alleged in the complaint covered should have been separately stated (Sharp v. Miller, 54 Cal. 329, decided in the days when the attitude of the courts towards pleadings was highly technical) we are no longer dealing with the matter as strictly one of pleading. The case was tried and submitted to the jury on one of these theories. To grant a judgment now on the pleadings on the opposite theory would not be fair or equitable. The day has passed in California when a litigant who sets up facts in his complaint showing that he has a cause of action will be denied an opportunity to submit his case to a jury, merely because of lack of niceties of pleading, because he has pleaded too much, or because he may not have set forth all the facts necessary, when such facts are in evidence. Thus, here, to make a perfect pleading, the complaint should have alleged that the parties were not subject to the Workmen's Compensation Act. Butler v. Wyman, 128 Cal.App. 736, 18 P.2d 354. But we are not considering a pleading on demurrer. We are considering a situation where the case has been tried on a theory which the facts alleged in the complaint support in most part, and where the answer provides the fact missing from the complaint. ‘Even where the complaint lacks the averment of a fact essential to a cause of action, it may, nevertheless, be so aided by the averment of the fact in the answer as to uphold a judgment thereon.’ 2 Cal.Jur. 244; Flinn v. Ferry, 127 Cal. 648, 60 P. 434, 436. Had the complaint been amended to conform to the proof at the time the case was submitted to the jury, then there could have been no question of its sufficiency. ‘Under the code, where an answer has been filed, any relief may be granted a plaintiff which is consistent with the facts stated in the complaint. An action does not now, as formerly, fail because of a mistake as to the form of remedy. If a complaint shows that the plaintiff has a cause of action, and that he is entitled to some relief, the question as to the kind or extent of the relief to be granted cannot be raised by demurrer on the general ground that sufficient facts are not stated; the complaint is not to be dismissed because plaintiff has proceeded upon the wrong theory, or has prayed for a judgment to which he is not entitled.’ 21 Cal.Jur. 111.

Moreover, as pointed out before, we are considering a case which has actually been submitted to the jury. If the other party by reason of confusion in the pleadings has been deprived of an opportunity to meet all the issues under the actual facts of the case, the remedy is not by granting a judgment to that party, but by granting a new trial.

This brings us to the crux of the case: was the court justified in holding that the evidence was insufficient to justify the jury's verdict? In this connection, it is important to bear in mind the rule which binds this court in determining whether a trial court is justified in disregarding the verdict of the jury and granting a judgment notwithstanding the verdict. As said in Docherty v. Key System, 80 Cal.App.2d 888, 184 P.2d 33, 34, quoting from Card v. Boms, 210 Cal. 200, 202, 291 P. 190: ‘The court should therefore grant such a motion when, and only when, disregarding conflicting evidence, and giving to plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff.’

Plaintiff lived at the home of defendant and was employed part time as a domestic servant. She weighed about 105 pounds. On the day in question, about 1 p. m., she started to clean the bathroom, which was located about 15 or 20 feet from the back porch, which was raised about eight feet from the ground, and on which there was a 2x4 railing about three feet above the porch floor. Plaintiff went into the bathroom to get the rug to shake it over the railing on the porch, as she had done on other occasions. She remembers nothing further until she woke up in the hospital. (A physician testified that in his opinion she could be suffering from retrograde amnesia as the result of her injury, which, in view of the fact that the testimony shows that plaintiff was not subject tospells of fainting or dizziness, accounts for her failure to recall the circumstances of her fall.) A next door neighbor, Mrs. Williams, heard some moaning coming from the direction of the defendant's house. On investigation, she found plaintiff lying on a rug on the ground below and about three and a half feet from the porch. Plaintiff was unconscious, lying in a large pool of blood. Lying by her was the railing, splintered, broken. ‘* * * it appeared to be decayed.’ The witness did not pick it up. This was the only evidence offered by plaintiff as to the accident or the condition of the railing.

Defendant placed on the stand a man named Robinson, who testified that he was a handy man who did carpenter work and other repair work. On the date of the accident, or shortly thereafter, he picked up the railing. It was not broken or decayed. The railing had pulled out from some of the nails which nailed it to the post on the porch. The points of some of the nails had remained in the post, but the railing had pulled away and had taken other nails with it. No explanation was given as to why the railing pulled away from the nails. The railing which gave way was attached to the same post as was the side railing. The wood itself was solid; it was only broken where the nails pulled out. Both Robinson and defendant testified that when the screen door was opened it would hit the side railing. Robinson said ‘they were always slamming that door * * * the screen door with a railing behind it gets hard usage.’

It is clear from the evidence that the plaintiff fell off the porch because the railing gave way. According to plaintiff's witness, Mrs. Williams, it gave way because it was defective, as in the case of Bock v. Hamilton Square Baptist Church, 219 Cal. 284, 26 P.2d 7. According to defendant's witness Robinson, it gave way because it pulled away from the post holding it. The jury could have drawn the inference that the constant striking of the side railing by the screen door caused the weakening of the connection of the post and the front railing.

Independently of statute, an employer is required to provide his employee with a safe place in which to work. As statedin Cordler v. Keffel, 161 Cal. 475, at page 478, 119 P. 658, at page 660, this duty ‘requires the employer to ‘make reasonable inspection of the premises at the time he sets the servant to work’; that ‘the duty of inspection must be continuously fulfilled and positively performed.’' Also ‘The duty of a master to his servant requires him to make a reasonably careful inspection at reasonable intervals to learn of dangers, not apparent to the eye, to which the servant may be exposed while engaged at the place where he is directed to work.’ 161 Cal. at page 479, 119 P. at page 660.

It appearing from the evidence that the injury was caused by the giving way of the rail, the burden devolved upon the defendant to show that he had made reasonably careful inspection of the premises, and that he did not know, and from such a reasonable inspection would not have known, that the railing was unsafe, either from decay, or loosening at the nails. The defendant did not testify to making any inspection as such, of the railing at any time. He did testify that he saw it at least twice daily, and a dozen times or more on Sunday. Every morning, in picking up the milk, he rested one hand on the railing, and lots of times in taking boxes out he would push against the railing with his leg. The railing was not loose in any way, nor did it ever shake or give. Robinson likewise testified that he had previously worked on the screen door, laid against and put pressure on the railing, and had never noticed anything wrong with the railing. Whether by this testimony the defendant met the burden of proving inspection was a matter for the jury. The jury did not necessarily have to believe the testimony of the defendant and his witness. The jury observed the demeanor of the witnesses on the stand, knew of their interest in the outcome of the case, and may have considered the fact that while the lawsuit was pending and the defendant knew that the plaintiff claimed the railing to be defective, defendant did not save the railing, but approximately a year and a half after the accident rebuilt the porch and permitted the railing in question to be destroyed or disposed of at the dumps.

Defendant cites certain cases such as Metz v. Southern Pac. Co., 51 Cal.App.2d 260, 124 P.2d 670, for the proposition that where a person is injured from an unknown or uncertain cause no presumption of negligence arises on the part of the owner of the instrumentality used at the time of the accident. However, that proposition does not apply here. The jury was justified in concluding that the giving way of the railing caused the fall. Even though, as suggested by defendant, plaintiff tripped before reaching the railing, or fell against it in coming out the door, it was the duty of the employer to provide a railing sufficiently strong to hold up in any of those eventualities. It must be contemplated that a porch railing will be submitted to such a strain. However, in view of plaintiff's custom of shaking the rug over the railing and the presumption that in the absence of evidence to the contrary she was using due care (sec. 1963, subd. 4, Code Civ.Proc.) it is a legitimate inference that the railing gave way as she leaned upon it, while shaking the rug.

In view of the testimony of the defendant's own witness and himself to the effect that the screen door on opening hit the adjoining railing and the fact that the railing did give way, neither the trial court nor this court can say as a matter of law that a reasonable inspection by the defendant would not have disclosed at least the fact that the railing was pulling away from the nails. The fact that the defendant knew that the screen door was constantly hitting the adjoining rail, and this over a long period of time, placed a duty upon him of frequently examining the railing to see the effect of such hitting. Nor can we say, as a matter of law, that the jury was not entitled to disregard defendant's testimony as to his observance of the railing, and to find that a reasonable inspection would have disclosed its condition. Even the fact that the plaintiff, who saw the railing daily, did not discover any defect or weakness in it, would not affect this result. While the plaintiff is required to use reasonable care for her safety, she was entitled to assume that the defendant would comply with the law and provide her a safe place in which to work. She is not under the same duty of inspection as the employer. Crabbe v. Mammoth Channel Gold Mining Co., supra, 168 Cal. 500, 143 P. 714.

In Cordler v. Keffel, supra, 161 Cal. 475, 479, 119 P. 658, it was held that the determination of the amount of inspection depended largely upon the peculiar circumstances of each case. There it was held that a reasonably careful person would not have been content to allow a wooden covering over a wall to remain eleven years without a careful inspection, rather than an inspection by a passing glance at its upper surface.

Defendant relies upon Baddeley v. Shea, 114 Cal. 1, 45 P. 990, 991, 33 L.R.A. 747, 55 Am.St.Rep. 56, in support of his contention that there was no evidence that would put defendant on notice as to the condition of the railing, and that his daily use of it constituted sufficient inspection under the law. In the Baddeley case a transfer man was called to the defendant's home to get two trunks to deliver to the railroad depot. A platform which was a part of the front steps to defendant's house broke when plaintiff, carrying one of the trunks, stepped on it. The steps had been built about seven or eight years. There was testimony that the materials used should ordinarily wear sixteen to twenty years without repair. An examination after the accident showed that the breaking was due to dry rot which could not have been discovered without making an opening through or under the vertical side of the platform sufficient to admit a person under the platform. On appeal, after a verdict in favor of plaintiff, the Supreme Court ordered a new trial, primarily for the failure of the court to give an instruction of which the following was a part: ‘If you believe from the evidence that the platform through which the plaintiff broke was constructed in a good and substantial manner, and gave no indication of being unsafe, up to the accident testified to, then I instruct you the defendant was under no legal obligations to have the said platform inspected from time to time; and if you find from the evidence that the defect in said platform, was secret and unknown to defendant, and was incident to the ordinary wear and tear of said platform, then you will find a verdict for the defendant.’ But even this instruction would leave it to the jury to determine whether the platform ‘gave no indication of being unsafe’ before the accident. If, in our case, the jury should find that the railing broke because of a latent defect not discoverable by ordinary use or inspection, then the ruling in the Baddeley case would apply. But if the accident was caused by the pulling away of the railing from its nails, the evidence of the stricking of the adjoining railing by the door would justify a finding by the jury that a reasonable inspection might have disclosed the weakness at the nails. At least, the constant striking of the rail by the door, over a long period of time, would put the defendant on notice that a weakening of the railing might be resulting. As said in Shearman and Redfield on Negligence, Vol. 2, p. 479, section 204, the master ‘is chargeable with constructive notice of whatever, by the use of ordinary care and diligence, he might have discovered, or avoided the danger incident thereupon.’

In O'Connor v. Mennie, 169 Cal. 217, 146 P. 674, an employee was injured by the falling of an elevator used in the course of his employment. The court in applying the doctrine of res ipsa loquitur stated:

‘* * * in view of the circumstances shown, no adequate cause for the accident appeared other than the giving or yielding of the supports of the head-piece. * * *

‘We are of the opinion that, in order to make a sufficient case for the jury, it was not incumbent on plaintiff, under the circumstances appearing, to do anything further in the way of showing that the defect in the applicance was actually known to the defendant, or would have been discovered upon the exercise of reasonable care to ascertain as to its condition. There was nothing in the evidence showing that the defect was such that it would not have been discovered, had such an examination of the structure been made by defendant as reasonable care for the safety of his employés demanded.’ 169 Cal. at page 225, 146 P. at page 677.

Having in mind that the defendant did not choose to make any explanation of what caused the railing to pull away from the nails, the following language is significant, 169 Cal. at page 226, 146 P. at page 677: ‘There are numerous authorities to the effect that under such circumstances it is enough for the employé to show that the accident was due to a defect in the applicance furnished the employé, without showing the precise nature of the defect, in this respect, and that such a showing warrants the inference that, if the defendant does not choose to give an explanation, the real cause was negligence on his part. This conclusion does not violate the well-settled rule that the party who alleged negligence must prove it, but simply means that such proof, under the circumstances stated, fairly warrants an inference of negligence, in the absence of explanation or evidence of reasonable care on the part of a defendant having superior knowledge as to the facts. In the case of Penson v. Island Empire etc. Co., 73 Wash. 338, 132 P. 39, [L.R.A.1915F, 15], this question was discussed. In that case a scaffold on which the plaintiff was standing while painting a roof fell, the fall being due to the breaking of a 2 x4 support, and it did not appear whether the defect in the timber was a patent or a latent defect. The same contention was there made as here, and the court, after a full discussion, concluded as follows: ‘The prima facie case made by the character of the accident itself was not met in any way. The unexplained facts speak negligence.’ The theory of the decisions in accord with this view is simply that the circumstances appearing are such that the jury may reasonably infer therefrom, in the absence of explanation, that the employer was guilty of negligence in the matter. There is ample authority for the view thus expressed, and it appears to us to be in accord with reason.'

We are not holding that the preponderance of evidence supports the finding of the jury, but that there was substantial evidence to support the verdict for plaintiff, and that therefore, under the rule, the court was not justified in granting a judgment notwithstanding the verdict.

The judgment is reversed.

I dissent.

I agree in substance with the views expressed in the majority opinion that the Workmen's Compensation Act has no application to the facts of this case. In other words, the theory that an award for compensation may be made without proof of negligence must be eliminated from consideration. The case should be treated as an ordinary tort action.

I agree that the motion herein should be granted when plaintiff's evidence is given reasonable inferences. However, there is no proof of defendant's negligence. There should be some moderation of liberality under such circumstances.

The evidence of plaintiff is epitomized by the following portion of the transcript. ‘Q. Where were you when you last remember your having the rug in your hands? A. I don't remember anything, except that I knew that I had started to clean the bathroom, and I went in to get the rug to shake it.

‘Q. When did you wake up? A. In the hospital about 7 o'clock that night.’

Plaintiff had previously been treated for a condition due to menopause. The bathroom door was approximately 18 feet from the back porch; the porch was about four feet square, with a railing around it about three feet high. Plaintiff testified that she was familiar with the railing; that she had never noticed it shake when she leaned against it, and that she was of the opinion it was ‘firmly fixed and solid.’ If there was a defect in the railing it was latent and not patent. Another witness testified that in working on the springs of the screen door at different times prior to the accident: ‘I laid against that wall and put the pressure against that rail. I have done that many times.’ As stated in the majority opinion, defendant testified that the railing was not loose in any way nor did it ever shake or give. The opinion holds that an employer should build railings sufficiently strong to hold up in any eventuality. If there was a latent defect in the door or in the railing it was incumbent upon plaintiff to show that defendant knew or should have known of such defect.

The majority opinion suggests two possible causes for this accident. The first seems to be that a porch door when opened hit the railing on a number of occasions, thereby weakening it. This explanation appears to be more theoretical than substantial. I can find no evidence that anyone noticed, or upon an examination should have noticed, that the impact of the door had weakened the connection of the railing to its support. The evidence shows to the contrary. The second supposition is that the nails pulled out from the posts when the railing was hit by plaintiff. Of course when a railing is knocked to the ground and the posts remains in position it may be assumed that the nails had pulled out.

To my mind the point in this case is whether there is any evidence that the employer knew or by the exercise of reasonable care should have known of a latent defect, if any, in the railing, the repair of which would, in view of all the circumstances, exclude the probability of this particular accident. The degree of care that an employer should exercise in seeking a latent defect depends upon the circumstances of each case. Here no complaint was made within a reasonable time of the accident or within any period prior thereto from any source that a defect existed in the railing through the loosening of nails or that the impact with the screen door had damaged any part of the porch. The employee herein was in as good position to observe any defect as the employer. The general rule is that the employee cannot recover on the basis of alleged failure of the employer to make inspection where each was equally well situated to discover any danger of injury. 35 Am.Jur., pp. 571–573, secs. 141, 142.

An employer may not be able to ascertain whether ordinary wear and tear has caused secret defects. Baddeley v. Shea, 114 Cal. 1, 45 P. 990, 33 L.R.A. 747, 55 Am.St.Rep. 56. The cause of the accident in this case may be only surmised, namely, that the rail broke due to the impact of the body of plaintiff who had lost consciousness. No witness saw the accident. Assuming that surmise may be raised to the standard of an inference, it has not been suggested how the employer could have ascertained that plaintiff would become unconscious as she approached the rail, or the degree of force with which her body would hit it.

In this case there should be no reference to Labor Code sec. 2801, which provides that when a master is charged with lack of ordinary or reasonable care the servant's slight negligence may be compared with the master's gross negligence. I do not understand that there is any evidence that the employer in this case was guilty of gross or any negligence, or that the employee was guilty of contributory negligence. The provision of the Roseberry Act (Stats.1911, p. 796) in that regard is the only instance of comparative negligence being recognized by a California statute.

I am not in accord with the holding that the doctrine of res ipsa loquitur applies. I assume my associates are satisfied that defendant did not know that plaintiff would become unconscious, and upon a further examination would not have known that the force of plaintiff's body against the railing would pull out the nails. There is evidence that almost daily defendant placed his hand or his leg against that railing. There is no evidence that it was unsteady or that any examination he could have made would be of avail in explaining the cause of plaintiff's unconsciousness.

There is no proof in this case that defendant did not supply plaintiff with a safe and suitable place to work. The doctrine of res ipsa loquitur does not apply where there is evidence of the cause of the accident. 38 Am.Jur., p. 992, sec. 296. Here the cause of the break in the rail was the accidental impact of plaintiff's body, attributable to her unconsciousness. The majority opinion relies upon O'Connor v. Mennie, 169 Cal. 217, 146 P. 674, and a case from the State of Washington cited therein. In the O'Connor case, 169 Cal. at pages 223–224, 146 P. at page 676, the court said: ‘Of course, to justify its application in any case, the circumstances of the accident must be such as, unexplained, afford reasonable evidence of want of care in a respect for which the defendant is liable in the particular action. For this reason the rule that the accident speaks for itself and prima facie shows negligence has been held inapplicable in many actions by an employé against his employer to recover damages for injuries sustained by the employé in the course of his employment. * * * It may safely be said that the authorities generally support the conclusion that, where the evidence as to the accident was such as to leave it purely a matter of mere surmise or conjecture whether the injury was due to a cause for which the employer was liable, the doctrine is not applicable. The burden of proof is on the employé to show actionable negligence, and under such circumstances the mere happening of the accident is not prima facie evidence of such negligence.’ ‘We have no doubt, however, but that the specification of improper and negligent construction must be construed as meaning an improper and negligent condition of the elevator as it was at the time of the accident—its unfitness at that time for the purposes for which it was intended and was being used.’ [169 Cal. at page 222, 146 P. at page 676].

‘Therefore, if, instead of relying upon a general allegation of negligence, a plaintiff sets out specifically the negligent acts or omissions complained of, the doctrine does not apply.’ 19 Cal.Jur., p. 127, sec. 127. The complaint in this case alleges: ‘That on or about the 15th day of January, 1944, the defendant negligently and carelessly maintained a defective railing on the back porch of the premises known as 729 Occidential Avenue in the City of San Mateo, County of San Mateo, State of California; that on said date, by reason of the negligence and carelessness of said defendants in so maintaining said defective railing on said porch, said railing gave way and plaintiff fell from said porch to the ground below, a distance of eight feet, and sustained the following injuries. * * *’ The rights of parties should not be decided upon a sympathetic conjecture.

The judgment appealed from should be affirmed, otherwise the majority opinion becomes the law of this case. If the trial court has the power to grant a new trial the defendant will be called upon to explain not only why the nails pulled out but perhaps the cause of plaintiff's unconsciousness. I cannot agree with the majority opinion that an employer must provide against any eventuality. The negligence in this case should be determined under the old rule—did the defendant exercise the care which an ordinarily prudent person would use under the same circumstances in the discharge of any duty then resting upon him? 38 Am.Jur., p. 643, sec. 2.

BRAY, Justice.

PETERS, P. J., concurs.