Phillips

— I dissent. I would affirm the judgment for the reasons expressed by Mr. Justice Vallée in the opinion prepared by him for the District Court of Appeal, Phillips v. G. L. Truman Excavation Co., (Cal.App.) 9 Cal.Rptr. 25 .

— On April 19,1957, plaintiff, Louis J. Phillips, was working as a lather on the exterior of an apartment then under construction. The building was completely surrounded by a two-level scaffold, one level of which was 8 feet from the ground, and the second level was 12 feet from the ground. Plaintiff was on the second level. It was constructed of 2 by 4 uprights attached to the building by steel braces. Crossbeams of 2 by 4’s were attached to the uprights at the proper levels. Two planks of 2 by 12’s at each level were laid across the crossbeams making a walkway about two feet wide. The inside edge of the walkway was about two feet from the building. About 30 inches above the walkway, at each level, a 2 by 4 guardrail was bolted to the uprights. When this guardrail was installed on the second level of the scaffold on the side of the building where plaintiff was working at the time of the accident, the carpenter failed to saw off the 2 by 4 at the outside edge of the scaffold and allowed it to project into space about 6 feet from that outside edge of the scaffold. There was an open window in the wall of the apartment near where plaintiff was working. Plaintiff had been working…