Schifano v. Security Building Co.

KAUFMAN, J.

This is an appeal from an order granting a motion for a nonsuit in favor of Bridges Construction Company. Plaintiff Ardine Schifano brought an action for damages against the owner of the premises, Security Building Company, for negligent maintenance of a defective condition on the premises, and against the contractor Bridges Construction Company, for negligent construction of a trash box of an abnormally dangerous nature which had been accepted by the owner, Security Building Company. Motion for nonsuit against the owner, Security Building Company was denied, and the jury returned a verdict in favor of that defendant. Appeals were taken as against both defendants, but that against respondent Security Building Company was

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dismissed, as said appeal was taken only from the order denying plaintiff’s motion for a new trial.

Plaintiff Ardine Schifano was an employee of a tenant on the second floor of the building owned by Security Building Company in San Jose, California. Janitor service was not furnished to the tenants, but a waste can was provided by the owner on the second and third floors. About seven months prior to the accident, for the purpose of fire prevention, defendant owner through its manager, Charles Hunger, directed Bridges Construction Company to construct a box around each of these waste cans, each box to have a lid which could be raised to allow waste paper to be deposited in the receptacles. The boxes and lids were asbestos lined, and the lids were to be closed at all times when not in use, in order that any possible fire would be smothered for lack of draft. It was to be built so that the lid would not rest up against the wall, according to the builders’ testimony, and he stated that it would not rest against the wall unless it were pushed back against the wall by the user. Witnesses testified variously as to the weight of the receptable’s lid, one witness estimating that it was 15 pounds. One of defendants’ counsel had it weighed during the time the trial was in progress and testified that the weight was 8% pounds. The box lid measured 20 inches by 32V2 inches and was attached to the box by hinges which were about 2 inches from the wall against which the receptacle was located. The box or receptacle was 40 inches in height in the front and 49 inches in the rear. After completion and installation of the waste receptacles and their acceptance by the owner, the contractor had nothing further to do with them.