Irvine v. JF Shea Company, Inc.

McCOMB, J.

From a judgment in favor of defendants predicated upon the granting of their motion for a judgment on the pleadings in an action to recover damages for personal injuries, plaintiff appeals.

The complaint alleges in substance that plaintiff was employed as an inspector for the Metropolitan Water District upon a construction job being performed by defendants for plaintiff’s employer, and that, while acting within the scope of his employment and endeavoring to remove himself from a construction ditch on the job, “climbed upon a spreader-board technically known as a cross brace” maintained by defendants, and attempted to walk on it and “that the defendants . . . did so carelessly, recklessly and negligently maintain, control, install, operate and keep the aforementioned spreader-board” that said spreader-board gave way, thereby precipitating plaintiff into the ditch and causing him injury.

These are the questions necessary for us to determine:

First: May the trial court in passing upon a motion for a judgment on the pleadings take judicial notice of the purpose and functions of a mechanical contrivance alleged to be the cause of plaintiff’s injury?

Second: Bid the complaint allege negligence on the part of defendants?

Third: Bid the trial court abuse its discretion in denying plaintiff permission to amend his complaint?

The first question must be answered in the affirmative. The trial court took judicial notice of the fact that a spreader-board or cross brace is a contrivance, the purpose of which is to give lateral support in trenches or ditches to preclude cave-ins. In so doing the trial court merely followed the rule as announced in section 1875, subdivision 1, of the Code of Civil Procedure to the effect that the courts will take judicial notice of the true significance of all English words and phrases. Some examples of words and phrases, the meanings of which the courts have taken judicial notice are:

[460]

“shaft”, “tunnels”, “levels”, “chutes”, “stopes”, “up-rises”, “cross-cuts”, “inclines”

(Hines

v.