Ignagni v. AJ Peters & Son, Inc.

AGEE, J. pro tem.

*

Defendant appeals from a judgment following a jury verdict in favor of plaintiff and plaintiff in intervention in a personal injury action. Plaintiff in intervention is the compensation insurance carrier for plaintiff’s employer.

Plaintiff was employed as a cement finisher by the general contractor in the construction of a hospital building. Defendant was the subcontractor employed by the general contractor to do all of the plumbing and heating installation. The building was a four-story concrete building with a basement below. All of the concrete for the floors and walls had been poured prior to the accident.

Plaintiff arrived at work on August 13, 1952, at about 7:45 a. m. He went down the stairway to the east wing of the basement and placed his bucket and tools on one of the window sills. He then crossed over to the middle of the room where his boss was. The latter instructed him where to start work that morning. On the way back to get his tools and bucket, plaintiff stepped on a short piece of one-half inch pipe which was lying loose on the floor. It rolled when stepped on, causing plaintiff to fall and break his right leg. The pipe was ad

[663]

mitted in evidence as Exhibit One and is hereafter referred to as such.

Defendant concedes that it had the duty to exercise ordinary care for the plaintiff’s safety

(Pauly

v.

King,

44 Cal.2d 649 [284 P.2d 487]) and states that “the appeal is rested on the single contention that there is no substantial evidence on which.to base an inference of defendant’s responsibility for plaintiff’s injuries.” Defendant contends that the evidence is insufficient to support a finding that Exhibit One was left by its employees and that, assuming the contrary, it was not negligence to have done so.

On this appeal we must, of course, resolve the conflicting evidence in the light most favorable to plaintiff. No witness testified to having seen any of defendant’s employees actually drop Exhibit One on the floor. However, the following rule is well settled: “Where direct and positive evidence of a fact is not available, proof may be made by means of indirect evidence, and the decision of the court may rest on reasonable inferences as well as on direct evidence.” (18 Cal.Jur.2d 478.) It is also well settled that “in order to support an inference based on circumstantial evidence it is not incumbent upon the plaintiff to exclude the possibility of every other reasonable inference from the proved facts.”