Fountain v. Willard-Slater Co.

HENSHAW, J.

Defendant Willard-Slater Company, under contract with the Los Angeles city school district, was erecting for it a school building in Los Angeles. It engaged defendant Venable to do the work of plastering this building. Plaintiff in turn was employed by Venable as a hod-carrier. In the building was a flight of stairs. The permanent stringers or supports of the steps were in place and across and

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resting upon them were temporary treads, of Oregon pine, one inch thick by six inches wide laid flatwise. The stairway was eleven feet five inches wide. The stringers were at each end and in the middle. There was thus between the stringers an unsupported space of over five feet upon each side of the middle stringer. The treads themselves were covered with the ordinary litter deposited in the process of the construction of such a building. Plaintiff was carrying a hod full of mortar up these steps when a tread broke, precipitating him to the floor below and inflicting the" injuries complained of. The tread which broke was not a clear board but contained several knots, and the break was through these knots. Plaintiff sued his immediate employer Venable and the general contractor. Judgment was given against the general contractor alone and that corporation appeals.

Upon appeal it argues that plaintiff in using the steps was a mere licensee to whom it owed no especial duty; that the steps were not an appliance furnished to Venable and his employees, and that they used them at their peril. In answer to this there may be first pointed out the finding of the court that the defendant Willard-Slater Company furnished all the materials and appliances which were used by the defendant Venable and his employees, including the plaintiff. Defendant not only so furnished these materials and appliances, but it was a part of its express duty under its contract with the city so to furnish them, and it is not denied by the pleading that appellant did furnish all the materials and appliances which were to be used by all of the workmen. Moreover, it is undisputed that the steps were made by defendant’s own workmen. And, finally, Mr. Slater, of the defendant company, testified: “The temporary steps were placed there for the workmen in general to be able to get from one part of the building to the other easily.”

It is argued that a ladder had been supplied and that plaintiff could have climbed this ladder and not used the steps. To this it may be. answered that it was not incumbent upon him to do so, and it was not negligence for him not to do so. It appears that there had been a ladder which plaintiff, with other hod-carriers, had used when the plastering was being done in another part of the building. At the time of the accident the plastering was being done upon the first landing of the staircase. The ladder had been taken away and the