Lucas

Plaintiff recovered judgment against defendant in the sum of twenty thousand dollars in an action for damages for personal injuries alleged to have been inflicted upon plaintiff through the negligence of defendant.

In due time defendant made a motion for a new trial, which was denied, and thereafter defendant duly appealed from the judgment and order denying his motion for a new trial.

Defendant as a builder and contractor was engaged in the construction of a six-story building in the city and county of San Francisco. The Otis Elevator Company, under a subcontract with defendant, put two elevators in said building. Defendant, being desirous of using one of the elevators before its entire completion, through his general superintendent temporarily accepted one of said elevators, with the understanding that the elevator company should complete them thereafter. In order to complete the elevators it was necessary to put in certain appliances, attachments, and electrical connections, which required that the workman so engaged should, while standing on top of the elevator car in one shaft, lean over and project his head into the other elevator shaft. Of this the general superintendent…

I dissent from the order denying a rehearing. Aside from the more technical objections to the variance between the allegations of the complaint and facts necessary to support the verdict, it appears to me that there was serious error prejudicial to" the defendant in the allowance by the court of the following instruction requested by the plaintiff:

The conflict between these two instructions is evident, and that the latter was correct and the former erroneous follows from the fact that upon the question whether Walker had ever undertaken by himself or his superintendent to provide for the safety of the employees of the elevator company in doing their work about the elevators, or that he had any notice that they would be exposed to any danger in completing such work,. there was a serious conflict in the testimony. If the only notice given was that which plaintiff testifies to giving Applegarth (as to which there is also a conflict of evidence) then Applegarth in promising to warn plaintiff was not acting “within the scope of his authority,” and his negligence could not be imputed to Walker. But if the jury obeyed the first instruction that was a question they could not consider,…