Martin v. Stone

HERNDON, J. Plaintiff brought an action for damages for personal injuries allegedly caused by the defendants’ negligence. The court, sitting without a jury, found that defendants Stone were not negligent and that, although defendant Colich Construction Company had been negligent, the plaintiff had been guilty of negligence which contributed proximately to the accident. It is from the judgment in favor of defendants Colich that plaintiff appeals.

The parties have proceeded by means of a settled statement on appeal under rule 7, Rules on Appeal. The following is a brief narrative of the facts presented in that statement. The plaintiff was employed as a plumber by Joseph Plumbing Company and, on March 20, 1956, was working on a residential tract development in Culver City. Defendant Colich Construction Company was engaged in certain excavation work on the same project and defendant Stone & Stone was the general contractor in charge of the project. Plaintiff had [728]been directed by his employer to follow the instructions of Leo Stone.

The plaintiff was instructed by Stone to repair a temporary water pipe which had been accidentally ruptured during an excavation by Colieh. Thereupon, plaintiff, together with another Joseph Plumbing employee, proceeded to the location of the rupture where they found an excavation which was described by various witnesses as being from 3 to 6 feet wide, 15 to 35 feet long and 5 to 15 feet deep. It was in no way shored or braced. The ruptured water line was broken in such a way that a portion of its length was sticking up into the air and to repair it, it was necessary to bend it back into the ditch so that the two ends could be joined.

The court found that the plaintiff directed Colieh’s employee, a back-hoe operator, “to alter and modify the dimensions of the ditch in the vicinity of the broken water line.” The new excavation was wider at the top than at the bottom, was not shored, and no steps were taken by anyone to determine whether or not the altered ditch was safe from the possibility of a cave-in. Immediately after the alteration the plaintiff entered the ditch and commenced work on the pipe in the area of the alteration.

A few moments later the plaintiff’s employer, Adolph Joseph, arrived at the excavation, noticed that it was not shored or braced, and instructed the plaintiff to get out. The plaintiff replied: “I have only got a few more minutes work” and remained in the ditch. Thereafter, within three or four minutes, the ditch collapsed partially, covering the plaintiff and causing the injury herein complained of. The only portion of the excavation which collapsed was that portion which had been altered at the plaintiff’s request.