Ferrel v. Safway Steel Scaffolds

GIBSON, C. J.

Plaintiff, an employee of an independent contractor, Bay View Welding Works, was injured as the result of a fall from a scaffold he was using while repairing a storage tank owned by defendant, Vegetable Oil Products Company, Inc. He brought this action for damages against Vegetable Oil and joined as defendants Safway Steel Products, Inc., and its division, Safway Steel Scaffolds, which leased the scaffold to Bay View.

The jury found in favor of the Safway defendants, and the sole contention raised on appeal with respect to them is that the court erroneously failed to instruct regarding the applicability to them of safety provisions of the Labor Code and safety orders issued under those provisions. Plaintiff initially requested instructions on that subject but withdrew them during the course of a lengthy discussion between court and counsel covering about 100 pages of the transcript. He now asserts that the withdrawal was conditional and that the condition was not met, but the record does not support this assertion. The judgment for these defendants must be affirmed.

A verdict was returned against Vegetable Oil. Upon motions by defendant the court entered judgment notwithstanding the

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verdict as well as an order for a new trial to be effective only if the judgment notwithstanding the verdict is reversed and the new trial order is not appealed from, or if appealed from is affirmed.

1

As we shall see, there was evidence to support the verdict against Vegetable Oil, and the court erred in entering the judgment notwithstanding the verdict. However, the order granting a new trial must be affirmed since one of the grounds specified for the order was insufficiency of the evidence, and we cannot say as a matter of law that there was no substantial evidence warranting a judgment for Vegetable Oil.

(Brooks

v.

Metropolitan Life Ins. Co.,

27 Cal.2d 305, 307 [163 P.2d 689].)

Vegetable Oil’s tank, which was cylindrical in shape, made of metal, and about 40 feet high, was damaged by fire and an explosion a few months before the accident. The roof was partially torn away, and the sides were buckled inward and creased at several points. Vegetable Oil entered into a contract with Bay View for repair of the tank; the work was done by Bay View without direction or control by Vegetable Oil, and all equipment used was furnished by Bay View. There was no provision in the contract for the taking of precautions by Bay View in doing the job, and as far as appears none was taken or suggested by Vegetable Oil.