The opinion
CARTER J.
I dissent.
I agree with plaintiff that certain instructions were prejudicially erroneous.
A hotly disputed question of fact in this case, and a most important one, was whether plaintiff failed to exercise due care when he did not see the dangerous condition of the flashing. The record shows that on his four trips to the roof he was carrying, each time, a heavy load and that he was walking on uneven ground which necessitated a close watch to see where he was going. Plaintiff’s evidence also showed that a roofer customarily worked all over the roof, including the flashing; and that it was not the custom to leave flashing unsupported; defendant’s evidence was to the effect that there was not necessarily such a custom, and that flashing was sometimes left unsupported. This merely created a con *662 flict—the resolution of which, under proper instructions, was for the determination of the jury. A litigant is entitled to instructions presenting his theory of the ease (Buckley v. Shell Chemical Co., 32 Cal.App.2d 209 [ 89 P.2d 453 ]; Morrow v. Mendleson, 15 Cal.App.2d 15 [ 58 P.2d 1302 ]; Stickel v. Durfee, 88 Cal.App.2d 402 [ 199 P.2d 16 ]). In Ferrula v. Santa Fe Bus Lines, 83 Cal.App.2d 416, 424 [ 189 P.2d 294 ], it was stated that it was the court’s duty to give instructions expounding the law upon every reasonable theory of the case which found support in the evidence. (See also Matsumoto v. Renner, 90 Cal.App.2d 406 [ 202 P.2d 1051 ]; Baugh v. Beatty, 91 Cal.App.2d 786 [ 205 P.2d 671 ]; Rather v. City & County of San Francisco, 81 Cal.App.2d 625 [ 184 P.2d 727 ].)
Whether the unsupported flashing presented an obvious danger and so required no warning to plaintiff .from the defendants was a question of fact for the jury to determine.
I agree with plaintiff that the following instruction removed that issue from the jury’s determination by suggesting the answer to it: “There is nothing inherently dangerous in doing roofing work on a flat deck surface, such as that which was here involved, and therefore it was not encumbent upon either of the defendants to advise plaintiff concerning any apparent condition or conditions which, being plainly observable, would advise a reasonable and prudent man to make inquiry concerning any probable dangers which might be involved in their use.” The just quoted first part of the instruction tells the jury, as a matter of law, that there was nothing dangerous on the roof; that any “apparent” condition was “plainly observable” to a reasonably prudent person. This took from the jury the most contested issue in the case: whether the condition was latent, or patent, and whether or not the condition was dangerous. The jury was flatly told there was nothing “inherently dangerous” in the type of work plaintiff was doing. Tacked on as a sort of afterthought was the statement that11 The question of whether or not the conditions existing herein were or were not plainly observable to a reasonable and prudent person is one of fact for the jury to determine from the evidence in this ease in the light of the Court’s instructions.” The jury, after being told there was nothing dangerous in the work, that any “apparent” (and hence patent) condition was “plainly observable” was then told that it might decide the issue. The instruction is clearly inconsistent in itself. The majority *663 opinion seeks to get around this fact by saying that the instruction does not state that the condition “was plainly observable, but specifies the defendants’ duties with regard to ‘any apparent condition or conditions, which, being plainly observable, would advise a reasonable man to make inquiry concerning probable dangers.’ At most, it is ambiguous.” This statement is ridiculous. Nothing could be more certain than that the jury was instructed that neither of the defendants was under a duty to warn plaintiff of an “apparent condition” which, being plainly observable would advise a reasonable and prudent man to make inquiry concerning any danger. Webster defines the word “being” as “existing, present. ’ ’
The correct rule is set forth in 24 California Jurisprudence, section 101, page 841 et seq.: ‘ ‘ The province of the jury is invaded where an instruction assumes the existence of a fact which is not in evidence, or with respect to which there is a conflict of evidence, and any error in this respect is not, it has been held, cured by other charges which submit to the jury the question whether such fact exists.” (Cahoon v. Marshall, 25 Cal. 197, 202 ; Berkovitz v. American River Gravel Co., 191 Cal. 195 [ 215 P. 675 ]; Fidelity etc. Co. v. Paraffine Paint Co., 188 Cal. 184 [ 204 P. 1076 ]; Starr v. Los Angeles Ry. Corp., 187 Cal. 270 [ 201 P. 599 ]; Sutter Butte Canal Co. v. American R. & A. Co., 182 Cal. 549 [ 189 P. 277 ]; Brinck v. Bradbury, 179 Cal. 376 [ 176 P. 690 ]; Dawson v. Pacific Elec. Ry. Co., 177 Cal. 268 [ 170 P. 603 ]; Hart v. Fresno Traction Co., 175 Cal. 489 [ 167 P. 885 ]; Pigeon v. W. P. Fuller & Co., 156 Cal. 691 [ 105 P. 976 ]; Still v. San Francisco etc. R. Co., 154 Cal. 559 [ 98 P. 672 , 129 Am.St.Rep. 177 , 20 L.R.A.N.S. 322 ]; Anderson v. Seropian, 147 Cal 201 [ 81 P. 521 ]; Gribben v. Yellow Aster etc. Co., 142 Cal. 248 [ 75 P. 839 ]; Roche v. Baldwin, 135 Cal. 522 [ 65 P. 459 , 67 P. 903 ]; Wahlgren v. Market Street Ry. Co., 132 Cal. 656 [ 62 P. 308 , 64 P. 993 ]; Williams v. Casebeer, 126 Cal. 77 [ 58 P. 380 ]; De Baker v. Southern Calif. R. Co., 106 Cal. 257 [ 39 P. 610 , 46 Am.St.Rep. 237 ]; Childers v. San Jose Mercury P. & P. Co., 105 Cal. 284 [ 38 P. 903 , 45 Am.St.Rep. 40 ]; Dean v. Ross, 105 Cal. 227 [ 38 P. 912 ]; Elledge v. National City & O. R. Co., 100 Cal. 282 [ 34 P. 720, 852 , 38 Am.St.Rep. 290 ]; Hill v. McKay, 94 Cal. 5 [29 P. 406]; Rosenberg v. Durfee, 87 Cal. 545 [ 26 P. 793 ]; Vulicevich v. Skinner, 77 Cal. 239 [ 19 P. 424 ]; Llewellyn Steam Condenser Mfg. Co., v. Malter, 76 Cal. 242 [ 18 P. 271 ]; Quinn v. Dresbach, 75 *664 Cal. 159 [ 16 P. 762 , 7 Am.St.Rep. 138 ]; St. Ores v. McGlashen, 74 Cal. 148 [ 15 P. 452 ]; Wodd v. Tomlinson, 53 Cal. 720 ; Bradley v. Lee, 38 Cal. 362 ; Caldwell v. Center, 30 Cal. 539 [89 Am.Dec. 131]; Preston v. Keys, 23 Cal. 193 ; Garrison v. Pearlstein, 68 Cal.App. 334 [ 229 P. 351 ]; Goehring v. Rogers, 67 Cal.App. 253 [ 227 P. 687 ]; Comer v. Los Angeles Ry. Corp., 66 Cal.App. 219 [ 225 P. 869 ]; Markart v. Zeimer, 67 Cal.App. 363 [ 227 P. 683 ]; Estate of Hewitt, 63 Cal.App. 440 [ 218 P. 778 ]; Sommer v. Martin, 55 Cal.App. 603 [ 204 P. 33 ]; McKinnon v. United Railroads, 55 Cal.App. 96 [ 203 P. 122 ]; Jones v. United Railroads, 54 Cal.App. 744 [ 202 P. 919 ]; Randolph v. Hunt, 41 Cal.App. 739 [ 183 P. 358 ]; Thompson v. Southern Pac. Co., 31 Cal.App. 567 [ 161 P. 21 ]; Vallejo etc. R. R. Co. v. Home Sav. Bank, 24 Cal.App. 166 [ 140 P. 974 ]; Ingalls v. Monte Cristo Oil & Dev. Co., 23 Cal.App. 652 [ 139 P. 97 ]; Petersen v. California Cotton Mills Co., 20 Cal.App. 751 [ 130 P. 169 ]; Sterling v. Cole, 12 Cal.App. 93 [ 106 P. 602 ]; Matteson v. Southern Pac. Co., 6 Cal.App. 318 [ 92 P. 101 ]; Carey v. Pacific Gas & Elec. Co., 75 Cal.App. 129 [ 242 P. 97 ]; Marston v. Pickwick Stages, Inc., 78 Cal.App. 526 [ 248 P. 930 ]; Waack v. Maxwell Hardware Co., 210 Cal. 636 [ 292 P. 966 ]; Mautino v. Sutter Hospital Assn., 211 Cal. 556 [ 296 P. 76 ]; Bakos v. Shell Co. of Calif., 115 Cal.App. 142 [ 300 P. 982 ]; Sanchez v. Pacific Auto Stages, 116 Cal.App. 392 [ 2 P.2d 845 ]; Collins v. Hodgson, 5 Cal.App.2d 366 [ 42 P.2d 700 ]; Reed v. Simpson, 32 Cal.2d 444 [ 196 P.2d 895 ]; Moran v. Zenith Oil Co., 92 Cal.App.2d 236 [ 206 P.2d 679 ]; Dodge v. San Diego Elec. Ry. Co., 92 Cal.App.2d 759 [ 208 P.2d 37 ].)
In the majority opinion is found this statement: “Relying upon dictum in Clarke v. Volpa Brothers, 51 Cal.App.2d 173 [ 124 P.2d 377 ], he argues that ‘where an instruction assumes the existence of a fact . . . with respect to which there is a conflict in the evidence, . . . any error in this respect is not . . . cured by other charges which submit to the jury the question whether such fact exists. ’ (P. 179.) ” It should be noted that the opinion neither states, recognizes, nor seeks to distinguish the general rule set forth in the numerous cases heretofore cited as well as in the Clarke case. The opinion implies that the instruction did not assume a fact concerning which the evidence was in sharp conflict and argues that it is, at most, merely ambiguous.
“Latent” is defined by Webster to mean: “to lie hid or concealed; not visible or apparent.” Plaintiff’s argument *665 concerning the instruction is that it assumes that the danger was patent, or obvious, by telling the jury that any apparent condition was plainly observable to a reasonably prudent person. Compare plaintiff’s contention with the following statement from the majority opinion: “A colloquy, occurring when the jurors returned from their deliberations to request additional instructions, clearly indicates that they did not understand the challenged instruction to state, as a matter of law, that the dangerous condition was patent.” It would appear obvious that a jury, composed of laymen, must have been thoroughly baffled in learning that the condition was apparent, and readily observable, and then later learning that it was up to them to decide whether it was, or was not. The majority opinion illustrates with unusual force the good reason underlying the general rule heretofore set forth.
I would reverse the judgment.