Freire v. Imperial Irrigation Dist.

BROWN (Gerald), P.J. Cotton Construction Company contracted to build a school in Holtville for the Holtville Union High School District. Cotton subcontracted electrical work to Encanto Electric Company. Encanto employed plaintiff Albert E. Freire. At the construction site, a utility pole owned and installed by defendant Imperial Irrigation District fell and injured plaintiff.

The school district’s plans called for a junction or pull box connecting underground wiring from the school and the pole wires about 10 feet east of the pole site. Encanto dug a trench for electrical conduit terminating about 10 feet east of the pole site. Defendant then installed the 35-foot pole 5% feet into the ground in a normal, customary manner providing adequate support.

Defendant required the plans be changed to place the pull box on the pole, at ground level on the north side. Encanto, responsible to bring the conduit to the pull box, extended the trench to the east side of the pole, exposing the east side of the pole two feet below ground, the dirt then sloping two feet east to the bottom of the trench. Defendant had not instructed Encanto to extend the trench to the east side of the pole. Encanto directed plaintiff and Encanto employee Jim Hicks to install the conduit in the trench, bringing it above ground on the north side of the pole. Plaintiff and Hicks dug away 4% to 5% feet below ground on the east side of the pole, completing the trench, and 2 or 3 feet on the north side, leaving the pole perilously balanced. Plaintiff measured the trench, felt the pole was unsafe, complained to a school district inspector and his Encanto foreman, and told Hicks he [382]did not know what was holding up the pole. Hicks and plaintiff agreed one of them would watch the pole at all times and warn if it started to fall. The school district inspector told plaintiff to stay clear until the situation was remedied. Later, on a day when a strong wind blew from the west, the pole fell, injuring plaintiff. The day before the pole fell, defendant backed a truck close to the pole without touching it; installed some equipment on the pole; started to drive away but was stopped by a rope connecting the truck and pole; untied the rope and drove away.

This is not plaintiff's workmen’s compensation case. This, plaintiff’s damages action, originally involved plaintiff, defendant, Cotton, the school district, and Industrial Indemnity Company (workmen’s compensation carrier). Cotton, the school district and Industrial Indemnity settled. Plaintiff appeals from a judgment favoring defendant. Plaintiff contends the trial court erroneously refused to instruct on his theory that defendant was his Labor Code, section 6304 employer, and, therefore, had duties and liabilities arising under the Labor Code. Plaintiff also contends, because defendant is his Labor Code employer, the trial court erroneously gave certain instructions.