The opinion
TRAYNOR, J.
I dissent.
The cause of the accident is unknown. The plaintiff does not remember it and cannot explain it, and there were no eyewitnesses. The railing may have given way as plaintiff leaned against it while shaking a rug over it. She may have tripped before reaching the railing or fallen against it after coming out the door. Whatever the cause of the accident, in my opinion there is no evidence that defendant knew of a defect in the railing or would have known of it by the exercise of reasonable care. Defendant’s duty to plaintiff was to exercise ordinary care to provide her with a safe place to work and periodically to make reasonably careful inspections of the premises to ascertain whether they were in a dangerous condition. (Cr abbe v. Mammoth Channel G. Min. Co., 168 Cal. 500 , 503 .[143 ,P. 714]; Cordler v. Keffel, 161 Cal. 475, 479 *182 [ 119 P. 658 ]; Russell v. Pacific Can Co., 116 Cal. 527, 531 [ 48 P. 616 ]; Alexander v. Central L. & M. Co., 104 Cal. 532, 539 [ 38 P. 410 ]; Prosser, Torts, 507; Rest., Agency, § 503.) The undisputed evidence establishes that defendant performed this duty.
Until the accident the porch and railing were in continuous use for a period of five or six years. Every witness who testified regarding the condition of the railing before the accident, including the plaintiff herself * , declared that the railing appeared to be firmly fixed and solid. In the light of this undisputed evidence, defendant’s daily use of the railing, in *183 the course of which no conditions appeared that would lead a person of ordinary prudence to suspect defects, was sufficient to discharge his duty of inspection. The scope of a reasonable inspection depends on all of the circumstances viewed in the light of the reasonably foreseeable risks involved. (Rest., Torts, § 307, com. b; Rest., Agency, § 503, com. c.) Thus regular use constitutes a sufficient inspection when defects would ordinarily become apparent in the course of such use. Defects in wooden railings fall in this category, for ordinarily there is unsteadiness in the railing that gives warning of their existence. The majority opinion, however, takes the view that some undisclosed type of inspection might have prevented the accident in this ease. Neither visual inspection nor daily use that reveals no infirmity is enough. Apparently the ordinary householder is responsible for defects that would be revealed only to a trained building inspector.
Heretofore a householder had no duty to look for latent defects, when he had no notice of any facts that would induce a person of ordinary prudence to suspect their existence. Thus, it has been held that the duty of a householder to maintain a platform at the bottom of his front stairs in a reasonably safe condition was discharged as a matter of law when it appeared that defendant had no knowledge of any latent defects and the everyday use of the platform gave no indication that it had become unsafe. (Baddeley v. Shea, 114 Cal. 1 [ 45 P. 990 , 55 Am.St.Rep. 56 , 33 L.R.A. 747 ].) In speaking of the defendant’s duty to inspect this court said: “It should be borne in mind, however, that the ultimate question of law to be decided is whether it was the duty of the defendant, under the circumstances proved, to examine his platform for *184 the purpose of ascertaining whether there were latent defects in it; for, if such was not his duty, his omission to make such examination was not negligence in any degree, and the defendant was entitled to a verdict (Smith v. Whittier, 95 Cal. 279 [ 30 P. 529 ]); and whether or not such was his duty depends entirely upon whether or not he had notice of facts which would induce a man of ordinary prudence to suspect the existence of a latent defect in consequence of which danger <of injury to person or property might be reasonably apprehended ; and when, in such a case, the facts, of which one charged with negligence had notice, are known and undisputed, the question of duty to examine for latent defects is a pure question of law, though it may involve a question as to the degree of care required, which is also a question of law when the facts are given.” (Baddeley v. Shea, supra, 114 Cal. 1, 7 .) The scope of a reasonable inspection by a householder thus depends on what conditions if any are apparent that would .lead a reasonably prudent person to suspect the existence of latent defects. In this case not only did defendant not know of any facts that might lead him to suspect the existence of such a defect, but the solidity of the railing during his continuous use and the regular use by others was a constant assurance to him that it was in a sound condition.
None of the cases cited in the majority opinion suggests that the duty to inspect goes beyond what defendant did here. In Crabbe v. Mammoth Channel G. Min. Co., 168 Cal. 500 [ 143 P. 714 ], and Alexander v. Central L. & M. Co., 104 Cal. 532 [ 38 P. 410 ], the defendants’ failure to inspect was not in issue: the defendants were negligent in not providing a safe place to work at the outset. In the former case decedent was killed by a rock falling from the roof of an underground mining station. At the time of the accident the station was not completely timbered, although the necessary timbers had been brought to the station two weeks before the accident. In rejecting the defenses of assumption of risk and contributory negligence the court pointed out that it is the duty of the employer and not the employee to inspect the premises for dangerous conditions. In the latter ease plaintiff's injury was caused by the slipping of a board on a platform. The board rested loosely without nailing or other fastening as it had for some years before the accident. The court rejected the defense of assumption of risk and again pointed out that the duty of inspection rested upon the employer and not the employee.
*185 In Cordler v. Keffel, 161 Cal. 475 [ 119 P. 658 ], there was no evidence of regular use by defendant of a well-covering over which people might walk, and it was held that the duty to inspect was not discharged by one inspection in a period of 11 years.
In Russell v. Pacific Can Co., 116 Cal. 527 [ 48 P. 616 ], plaintiff was injured by steam discharged into an outside toilet. The end of the steampipe consisted of an elbow 18 inches long that defendant claimed extended directly downward. The place was examined after the accident, and the elbow of the steampipe extended directly upward. The steam-pipe had not been inspected in any way by defendant for a period of four years before the accident.
In Fogarty v. Southern Pacific Co., 151 Cal. 785 [ 91 P. 650 ], plaintiff was injured as a result of a defective brake on one of defendant’s cars, and an examination made after the accident indicated that the brake had not been adjusted for some time. In violation of company rules no test of the brake had been made immediately before the car was set in motion.
In Dyas v. Southern Pacific Co., 140 Cal. 296 [ 73 P. 972 ], there was evidence that the structural defects causing the accident had caused a similar accident five years earlier and that no repairs had been made in the interim.
In Neale v. Atchison etc. Ry. Co., 178 Cal. 225 [ 172 P. 1105 ], the question of the adequacy of inspection was held to be for the jury when plaintiff introduced evidence that locomotives wobbled when passing over the track in question and defendant introduced evidence showing recent inspection.
In Dawson v. Pacific Electric Ry. Co., 177 Cal. 268 [ 170 P. 603 ], no inspection was made of the rope sling that broke and caused the accident before it was put in use.
In Ronconi v. Northwestern Pac. R. R. Co., 35 Cal.App. 560 [ 170 P. 635 ], it was held that a mere visual inspection of a wooden bar used in propelling a railroad handcar was not sufficient to discharge the employer’s duty after a defect had been called to the foreman’s attention.
None of these cases is authority for the proposition that the duty to inspect a porch railing is not discharged as a matter of law when defendant’s everyday use of the railing indicates that at no time was there any weakness or shakiness therein.
The undisputed evidence that defendant discharged his duty of inspection also precludes invoking the doctrine of res ipsa loquitur. That doctrine applies only if it can be said that in the light of common, experience it. was, more, likely than. *186 not that the accident was the result of defendant’s negligence. (LaPorte v. Houston, ante, p. 167 [ 199 P.2d 665 ].) “Where no such balance of probabilities in favor of negligence can be found, res ipsa loquitur does not apply.” (Prosser, Torts, 297.) In the present case the railing at all times appeared to be firmly fixed and solid. It is thus as probable that it gave way because of some extraordinary force or because of some latent defect no reasonably prudent person would have foreseen as that it gave way because defendant was negligent.
In my opinion the principles set forth by this court in Baddeley v. Shea, supra, 114 Cal. 1, 5-7 , are controlling here and compel an affirmance of the judgment.
Schauer, J., and Spence, J., concurred.
Respondent’s petition for a rehearing was denied December 30, 1948. Traynor, J., Schauer, J., and Spence, J., voted for a rehearing.
Plaintiff testified as follows: “ Q. During the several times that you would go in and out of this house during that time did you ever touch that railing? A. Oh yes, no doubt.
“Q. Did you touch it every day? A. I don’t remember.
“Q. Did you touch it more than once during the whole time that you were there? A. I went out there to do some things. I can’t remember. I put my hand on the railing when I went downstairs, that is probably the only time I would touch that railing. I would have to go over to the rail if I wanted to put my hand on it.
“Q. Now, you say—what did you use that back porch for—when you were actually doing your housework? You spoke about this rug, shaking a rug. A. That is practically what I would use it for—shaking my dust mop over it.
“Q. Did you only do that once during the two months that you were there? A. No, oh, no. I did that every time I cleaned the bathroom.
“Q. How often did you clean the bathroom? A. Well, I would say I worked there three times a week, two times a week.
“Q. And you would come in contact with that railing at least two times a week? A. Yes.
“Q. Now, during that time did you ever find anything wrong with that railing? A. No.
“Q. Did it ever shake with you? A. No.
“Q. Did you see anything loose about it? A. No.
“Q. Did it seem firmly fixed and solid, and in place? A. I thought so.
“Q. How many years out of that 14 years had the Goldbergs lived at this particular house? A. Five, I think.
“Q. Well, about five years I think. It might have been six for all you know, is that correct? A. I am not very good at remembering.
“Q. Well that is very close. It is, you say, about five years that you remember out of the-- A. (interrupting). Yes.
“Q. Now, during that whole five years you worked for the Goldbergs, did you not? A. Yes.
“Q. And you went in and out of this door during that five years? A. Yes.
‘ ‘ Q. And you touched this railing during your work in that five years, did you not. A. Yes.
“Q. You came into contact with it all the time.
“Mr. Belli. I think that has been asked and answered?
“The witness. Yes.
“The Court. Overruled. Go ahead.
( (
“Q. Now, Mrs. Devins, you say that it was your custom to shake the rug, is that right? A. Yes.
“Q. Will you show the jury here just what you do when you shake *183 the rug? A. Well, I take it—-take the rug and shake it like this (indicating).
”Q. Where did you go? A. Over the railing.
“Q. And will you come up—to assume that this is your railing—will you come up to this railing? A. I would shake it.
“Q. That is a little bit high. Come up to this railing down here where it would about hit on you and show us what you do. A. I shake it like this, shake a rug like that (indicating).
”Q. Just wiggle it a couple of times?
“A. Why I can’t shake it very hard right in front of the lady. Yes. I would shake it very hard if I would shake it out.
”Q. You would really shake it hard? A. Yes.
“Q. You had done the same thing over a course of six years at the residence of the Goldbergs, had you? A. Yes.
“Q. That same thing over this same railing? A. Yes.
”Q. And during that time when you were shaking it vigorously as you have outlined did that railing ever indicate in any way that it was either weak or loose? A. No.”