Woodcock

I dissent. I would affirm the judgment.

The petition of the plaintiff and respondent for a rehearing was denied November 20, 1968, and the judgment was modified to read as printed above.

Plaintiff Waldo E. Woodcock, an employee of Barrett Construction Company, was injured on December 16, 1963, at a construction site in Palo Alto. He commenced this action for damages for personal injuries against Fontana Scaffolding and Equipment Company, alleging that it had negligently stacked a number of metal scaffold frames which had fallen on him.

Fontana Scaffolding denied all material allegations of the complaint, alleged negligence on the part of Barrett Construction Company, and claimed a setoff of the workmen’s compensation benefits Woodcock had received. Argonaut Insurance Company, Barrett’s workmen’s compensation carrier, filed a $4,311.76 lien against any recovery under Labor Code section 3856, and intervened to protect its claim.

The cause was tried by a jury. After instructing on the law of negligence, the trial judge explained the interest of the intervener. “Plaintiff has received certain sums to wit, $4,311.76 as and for workmen’s compensation benefits from the Argonaut Insurance Company, which carried workmen’s compensation insurance for his employer, the Barrett Construction Company. If you find a verdict in favor of the plaintiff, Waldo E. Woodcock, the…