Philips

Plaintiff-respondent brought this action for personal injuries resulting from a fall into a conveyor gutter or trench in a building under construction. At the time and place defendant-appellant Rookie Gamber (referred to in the pleadings and testimony as Rocky or Rock and hereinafter referred to as Gamber) individually and doing business as Gamber Construction Company, was supervising the construction of a fruit-processing shed for the defendant-appellant Sun-Best Fruit Distributors, a copartnership (hereinafter referred to as Sun-Best). It is alleged plaintiff’s injuries were the proximate result of the negligence of all defendants. By answer defendants denied this allegation and alleged contributory negligence on the part of plaintiff and that he assumed the risk.

The facts show generally that prior to July 20, 1954, Gamber was employed by Sun-Best, which was the owner of the real property. Sun-Best agreed with Gamber that he would be paid a fixed fee for supervising and running the job of constructing a fruit-processing shed. Gamber testified this arrangement was not a contract on a bid basis or for cost plus a fixed percentage. He was to supervise the construction and obtain…