Kalash

Plaintiff, a painter by trade, acting in the course of his employment, on April 8, 1929, was standing on the next to the top rung of a forty-foot extension ladder, hanging window screens on the outside of an apartment house in Los Angeles owned by Hart Brothers Company, his *231 employer. While so engaged, the rung of the ladder on which he was standing collapsed, due to its defective condition, and plaintiff was thereby precipitated a distance of some thirty feet to the sidewalk and sustained serious and permanent physical injuries. The Los Angeles Ladder Company, defendant and appellant here, manufactured the ladder on a date subsequent to January 1, 1929, and sold it to said employer on March 8, 1929.

Plaintiff brought this action against said defendant, charging it as manufacturer with negligence in the construction of the ladder and further charging that the ladder was such an instrumentality as to be imminently dangerous when defectively constructed or assembled. Plaintiff had verdict and judgment thereon. Defendant moved for a new trial and also for judgment notwithstanding the verdict. Both motions were denied and defendant later appealed from the judgment.

We are aware…

I dissent. The majority opinion holds that a duty of care was owed to plaintiff, and the only remaining question is whether the jury were justified in finding a violation of such duty, that is, in finding that the dangerous condition of the ladder was a result of negligence on the part of defendant. The only defect was in the rung. It was made of oak, a wood generally approved for the use to which it was put, but the particular piece was “brash” or brittle, and incapable of supporting any substantial weight. It had been purchased by defendant from a concern in Arkansas as part of a carload lot of over 100,000 rungs. The evidence shows that less than a dozen rungs out of the carload bad been taken out and specially examined for defects, and that the only other testing was by the observation of the workmen who assembled the ladders. If they felt, in handling a rung, that it was too light, a sign of brashness, they would discard it. The rungs of the assembled ladders were also struck with a hammer to ascertain defects through the sound. It therefore appears that no scientific test was made of each rung, either prior to or after its insertion in the ladder, the matter being left to…

Syril S. Tipton for Intervener and Respondent.

L. J. Styskal for Respondent.

Livingston & Livingston, O'Melveny, Tuller & Myers, Walter K. Tuller and Jackson W. Chance as Amici Curiae on Behalf of Respondent.

PRESTON, J.

Plaintiff, a painter by trade, acting in the course of his employment, on April 8, 1929, was standing on the next to the top rung of a forty-foot extension ladder, hanging window screens on the outside of an apartment house in Los Angeles owned by Hart Brothers Company, his employer. While so engaged, the rung of the ladder on which he was standing collapsed, due to its defective condition, and plaintiff was thereby precipitated a distance of some thirty feet to the sidewalk and sustained serious and permanent physical injuries. The Los Angeles Ladder Company, defendant and appellant here, manufactured the ladder on a date subsequent to January 1, 1929, and sold it to said employer on March 8, 1929.

Plaintiff brought this action against said defendant, charging it as manufacturer with negligence in the construction of the ladder and further charging that the ladder was such an instrumentality as to be imminently dangerous when defectively constructed or…