Mitchell v. A. J. Bayer Co.

SHINN, P. J.

Plaintiff brought this action for damages occasioned by a fall he sustained while employed as an iron worker on the Statler Hotel building in Los Angeles. Defendants were A. J. Bayer Company and Robert E. McKee, the general contractor. A judgment of nonsuit was entered upon defendants’ motion. Plaintiff appeals from the order, which is a judgment.

(Costa

v.

Regents of University of Cal.

103 Cal.App.2d 491 [229 P.2d 867].)

Plaintiff fell down a stairway and sustained serious injuries. In his complaint he alleged he was working on the premises at the invitation of the defendants and that he suffered his fall as a result of the negligence of the defendants in the construction and maintenance of a hall and stairway. The following is a summary of Mr. Mitchell’s testimony, taken from the briefs.

Plaintiff had been an iron worker in construction work since 1916. He had worked for five or six months on the new Statler building in Los Angeles installing windows on all the floors. On Sunday, February 17th, he was sent from the 13th floor to the ballroom floor to work on windows; in looking for an outlet in which to plug in his electric drill he found some that were not “live”; he saw a black wire on the hall ceiling and followed it; he came to a partition, saw a hole in the partition high enough to walk through and 3 or 4 feet wide; there was no artificial light; there was light for work on the windows; he could see the wire going through

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the partition; he came to a stop near the hole, he could see nothing inside; it was pitch dark; he could not see the surface of the floor inside the hole, or any walls, and did not know what was inside; he walked through the hole without using any artificial light and fell down a stairway which led from the ballroom floor to the seventh floor, but he did not see the stairway or anything else as he fell and did not fall over anything as far as he could remember.

Previous to his fall plaintiff had not been in that particular part of the hotel nor had he used the stairway. There was evidence that inside the opening through which plaintiff passed the platform was visible, from which it could be inferred that plaintiff did not look before entering. Further testimony was elicited from witnesses Gray, and Davis called by plaintiff under section 2055, Code of Civil Procedure. Gray was a safety inspector for McKee. His duties were to take protective measures at open holes, elevators, stairways, and other hazardous locations to guard against accidents. This had been his work for 10 years for McKee Company. Lighting was maintained on all working days. On the stairway in question there was a pipe handrail. There was a metal strip on the edge of each step, it being the intention to cover the step with a layer of cement to the top of the strip. Boards were laid on the steps to level them off and to prevent catching a toe on the metal strip. Mr. Gray had used the stairway every working day. Planks were on the steps the Friday before the accident. On Monday Mr. Davis found that the top plank had been removed.