Roseberry v. Edward F. Niehaus & Co.

MELVIN, J.

Plaintiff was injured by the falling of lumber which had been piled on the premises of defendant. He was awarded damages in the sum of two thousand dollars. The defendant appeals from this judgment and from an order denying its motion for a new trial.

The plaintiff was employed as a stationary engineer by Messrs. Poetsch and Peterson, tanners. About the eleventh day of April, 1909, he went with Mr. Poetsch to examine a boiler which the corporation now defendant herein had for sale at its premises. They met Mr. Niehaus, one of the officers of

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the corporation, and after some talk Mr. Poetsch purchased the boiler, together with certain fittings. On April 21, 1909, workmen were sent with a truck to the premises of the defendant to detach the boiler from its place and to remove it to the factory of the new owners. Plaintiff was sent by his employers to see that everything properly appertaining to the boiler and purchased by them should be brought away from the place of business of Edward F. Niehaus & Co. The work of dismantling the boiler was not to be done by plaintiff, but by one Odermatt, who had been hired for that purpose by Poetsch & Peterson. Plaintiff went to defendant’s place of business, met Mr. Niehaus, and together they indicated to Odermatt and his helpers the pipe and fittings which were to go with the boiler. The boiler was loaded upon a truck at the rear of a gangway opening on Brannan Street. Mr. Niehaus had left plaintiff, and later plaintiff started to depart from the premises but stopped to converse with a friend. He then went to the office to say good-bye to Mr. Niehaus, but not finding him, turned in the d.oor to leave when he saw the loaded truck starting out by the gangway leading to Brannan Street. He waited for the truck to pass, and then walked behind the men who were following it. Before he reached the open gate the lumber fell upon him, broke his leg and inflicted other serious injuries.

Appellant’s counsel make numerous contentions, the principal ones being that plaintiff knew of the dangerous condition of the pile of lumber and was guilty of contributory negligence in going near it, and that having finished his business and having been allowed ample time to leave the premises he became a trespasser or at most a mere licensee, to whom defendant owed no duty of furnishing a safe passageway along the gangway to the street.