Cooper v. Quandt

California Court of Appeal May 6, 1930 No. Docket No. 7199.Published

Before: Sturtevant

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Holding. The court held that the evidence presented by the plaintiff, including admissions by the defendants' foreman and one of the defendants, was sufficient to support a judgment for damages caused by a falling plank, and that the defendants failed to rebut the resulting inference of negligence.

Issues

Whether the plaintiff sufficiently proved the defendants' negligence in causing a plank to fall and strike him.
Whether the trial court erred in denying the defendants' request for a directed verdict.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The foregoing evidence was some proof of plaintiff’s allegations whether it be said they pleaded negligence in general or specific terms.”

“Of course, under the facts, he was not bound to do so.”

“We find no error in the record.”

STURTEVANT, J.

While the Hunter-Dulin building was being constructed at the corner of Sutter and Montgomery Streets in San Francisco several different contractors were engaged in their work at the same time. Lindgren & Swinerton were the general contractors and the plaintiff was employed by them as a common laborer. At the time of the accident which is the subject matter of this action he was working on a tramway which led from a window on the west side out over the sidewalk. At the same time the defendants, A. Quandt & Sons, the painters, were engaged in the performance of their contract. . At the time of the accident they were working on the fourth and fifth floors directly over and above the plaintiff. While the plaintiff was so at work a wooden plank fell and struck him and for the injuries so sustained he commenced this action to recover damages. From a judgment in plaintiff’s favor the

[508]

defendants have appealed and have brought up a typewritten record.

The defendants assert that in his complaint the plaintiff pleaded specific acts of negligence, that he did not prove those specific acts, and that the judgment should be reversed. The plaintiff introduced proof that the plank that hit the plaintiff was a painter’s plank, that it was marked A. Quandt & Sons, that Mr. Hatton, plaintiff’s boss, saw the plank strike and that he looked up and saw defendants’ men near the fire-escape at the fourth and fifth floors. Almost immediately thereafter Mr. Hatton went up to where defendants’ men were at work and there met defendants’ foreman. With him Mr. Hatton went to the fire-escape and there saw defendants’ operators at work and while there he had a conversation. Mr. Hatton testified that the fact was admitted as to what service dropped the plank— that the actions of the men practically admitted that they had dropped the plank. These statements were not objected to and there was no motion to strike them out. They had some probative weight.

(Sanders

Austin,

180 Cal. 664, 666 [182 Pac. 449];

Walberg

Cooper v. Quandt

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STURTEVANT, J.

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