Kolburn v. P. J. Walker Co.

McCOMB, J.

Plaintiff appeals from (1) a judgment in favor of defendants P. J. Waiter Company and Owens-Illinois Pacific Coast Company predicated upon the granting of said defendants’ motion for a directed verdict in their favor, and (2) a judgment in favor of defendant William P. Neil Company, Ltd., predicated upon the sustaining without leave to amend of a general demurrer by said defendants to plain

[547]

tiff’s complaint as amended. This is an action to recover damages for personal injuries.

Viewing the evidence most favorable to plaintiff (appellant), as we must in reviewing a judgment predicated upon the granting of a motion for a directed verdict

(Peckham

v.

Warner Bros. Pictures, Inc.,

36 Cal. App. (2d) 214 [97 Pac. (2d) 472]), and considering as true all issuable facts well pleaded, legally provable, and not inconsistent with other allegations in the complaint as amended, as we must in reviewing a judgment predicated upon the sustaining of a general demurrer to a complaint without leave to amend

(Katenkamp

v.

Union Realty Co.,

6 Cal. (2d) 765, 769 [59 Pac. (2d) 473]), the material facts alleged and proven are:

In 1927 defendant Wm. P. Neil Company, Ltd., as contractor constructed a building for the Illinois Pacific Glass Corporation. In 1932 defendant Owens-Illinois Pacific Coast Company acquired the property from the Illinois Pacific Coast Company (the latter having formerly been known as the Illinois Pacific Glass Corporation). In 1937 defendant Owens-Illinois Pacific Coast Company entered into a contract with defendant P. J. Walker Company to make alterations in the building and to erect a new building. Defendant P. J. Walker Company let a subcontract to Joe Gerrick & Company for the performance of the structural steel work on both buildings.

Plaintiff, a structural steel worker for thirty-one years, was an employee of the subcontractor. The original building, hereinafter designated as the old building, was of steel construction with roof and sides covered with corrugated metal sheets approximately 9 feet in length and 32 inches in width. At the top of the building there was a monitor which ran the entire length of the building, the roof sloping from said monitor to the north and to the south. On the south slope the roof was covered by metal sheets running in a northerly and southerly direction. Between the first row of corrugated iron sheets adjacent to the monitor of the building and the second row of corrugated metal sheets was a row of corrugated glass sheets of similar dimensions running the full length of the building forming a skylight. The steel framework upon which the corrugated metal and glass sheets were placed consisted of steel purlins about 4 feet apart. The corrugated metal sheets, being about 9 feet in length,