Dressel v. Parr Cement Co.

DORAN, J.

The complaint herein alleged that Erie Flo-dine, the appellant, was the owner and in possession of a certain subdivision located in North Hollywood, and that through the instrumentality of various subcontractors, was engaged in the erection of 156 residences in such subdivision. It further appears that the Valley Shingle Company had undertaken to shingle the roofs of these houses; that the plaintiff was employed by this company as a roofer, and at the time of the alleged injury was engaged in shingling one of the houses.

[538]

The complaint alleges that the house in question was so negligently constructed that when the plaintiff, in the course of employment, stepped upon a certain portico or small porch roof, “the same fell away from the building and precipitated the plaintiff to the ground,” resulting in the injuries complained of.

The case was tried before a jury, and at the conclusion of plaintiff’s case, a nonsuit was granted as to defendant Stokes, the general contractor, and another defendant, Tony Parravano, doing business as Parr Cement Company. A motion for nonsuit as to the appellant, Erie Flodine, was denied. The jury returned a verdict for the respondent and against the appellant in the sum of $2,000. Thereafter appellant’s motion for a new trial was denied, followed by the present appeal.

Appellant’s points for reversal include, (A) error in refusing to grant a nonsuit; (B) error in admitting plaintiff’s testimony in rebuttal as to a conversation with appellant’s representative, Harry Fossedal; (C) error in refusing to give an instruction directing a verdict for defendant; and (D) error in refusing to grant appellant’s motion for a new trial.

In reference to the alleged errors in refusing to grant a nonsuit and a directed verdict, appellant contends that ‘1 There is no testimony in this record from which it may fairly be inferred that he (Flodine) directly, or indirectly, either neglected some duty which he owed to this plaintiff or that he did some negligent act which proximately caused the accident.” In this connection it is asserted that “All development was by independent contractors over which Flodine exercised no control”; following this assertion, however, is the statement that “Fossedal, as appellant’s representative, checked the work upon each as a subcontractor reported his work ready, to see that it conformed to F. H. A. requirements and reported to Flodine, who in turn issued his check.” It is further claimed that “Neither appellant or his representative Fossedal had ever known or noticed whether the posts to support the small portico upon which plaintiff stepped was in place or ever had been”; and that, “For 17 years plaintiff had followed the trade of a shingler, knew the type of construction employed, yet made no inspection or took any measures to ascertain whether the portico was safe to step on.”