The opinion
STONE, J.
I concur in the result. I agree that the judgment should be reversed, but for a different reason from that expressed in the majority opinion. The record supports the majority view that there is no evidence of failure on the contractor’s part to comply with the plans and specifications. But I cannot agree that compliance with the plans and specifications, and acceptance by the owner, clothed the contractor with complete immunity from liability after the date of acceptance. The majority opinion relies upon the broad language of Johnson v. City of San Leandro, 179 Cal.App.2d 794 [ 4 Cal.Rptr. 404 ], which does protect the contractor under such circumstances. However, as I read the Supreme Court case of Stewart v. Cox, 55 Cal.2d 857 [ 13 Cal.Rptr. 521 , 362 P.2d 345 ], which followed the Johnson case, the rule is far from being inflexible. Examples of factual situations which may be exceptions to the broad language used in the Johnson case, are cited in Stewart .
*78 A reasonable exception, it appears to me, arises if a contractor builds a structure that constitutes an obvious danger to life or limb, or constitutes a hidden peril or “trap” that should be obvious to the contractor. (Cf. Dow v. Holly Mfg. Co., 49 Cal.2d 720, 724 [ 321 P.2d 736 ].) New York courts have applied this principle to cases arising under similar circumstances. In Roth v. Great Atlantic & Pacific Tea Co., 108 P.Supp. 390 at page 394, the court said:
“In New York, a builder or contractor is justified in relying upon the plans and specifications which he has contracted to follow unless they are so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury. Ryan v. Feeney & Sheehan Building Co., 239 N.Y. 43 [ 145 N.E. 321 , 41 A.L.R. 1 ].”
In light of the facts of the ease before us, whether the opening behind the seat and between the seat and the wall constituted an obviously dangerous condition or trap to a child of tender years is a question of fact. Therefore the case should not have been submitted to the jury on the question of whether the contractor complied with the plans and specifications and there had been an acceptance by the owner. Bather the issue should have been whether even though complying with the plans and specifications the contractor created a dangerous structure or one embodying a hidden peril or trap—a condition that should have been obvious to a licensed contractor.
A petition for a rehearing was denied May 8, 1963, and respondent’s petition for a hearing by the Supreme Court was denied June 4, 1963.