Clyde v. Mitchell

GOULD, J.,

pro tem.

Plaintiff and another roofing contractor were called to examine the roof of an old two-story residence in an effort to locate a leak. While leaning against a guard rail enclosing a second-story porch the rail gave way and the two men were precipitated to the cement pavement fifteen feet below. Plaintiff brought this action to recover damages for the injuries he suffered. His suit was directed against defendant Mitchell as owner of the property, defendants Hampton as tenants, defendant MacLaughlin Company as agent of the owner, and defendant Chaffin as the employee of the owner’s agent, who summoned him to do the work. At the conclusion of trial the court granted motions for non-suit as to all defendants, and from the resultant judgment plaintiff appeals.

The court properly ruled that appellant had not made out a case entitling him to recover. Interpreting the evidence most- strongly in favor of appellant and against respondents, as we must

(Hoff

v.

Los Angeles Pacific Co.,

158 Cal. 596 [112 Pac. 53]), it is apparent that he can maintain no cause of action against respondents or any of them upon the showing which he made. At the time of the accident appellant was fifty-two years of age, had been engaged for seventeen years in work upon roofs and about buildings, and his co-worker was a man equally experienced. It is significant that although the two men tested another section of the guard rail before they trusted if for the purpose of climbing upon it to a higher elevation, they approached the section where the accident happened without any precaution, both leaned against it “off balance” and thus caused it to collapse. The building was old, its condition was apparent and the event occurred in broad daylight. To reach the same point of inspection they might have used ladders which they had at the very time in their automobiles on the premises. While the owner or occupant of premises is bound to use ordinary care for the protection of an invitee, it is stated in

Shanley

v.

American Olive Co.,

185 Cal. 552 [197 Pac. 793], that such owner is entitled to assume that the invitee “will perceive that which would be obvious to him upon the ordinary use of

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