I dissent.
The holdings of the majority that the General Industry Safety Order set forth.in section 3237 of title 8 of the Administrative Code has no application to the facts of this ease and that the trial court properly refused to instruct the jury as to the legal effect of violations of the safety order, are clearly erroneous.
The majority state that, although “it is undisputed that county employees assembled, disassembled, maintained and repaired the bleachers, and stood on them to do so, it cannot ‘be said that the bleachers were ‘used by employees in the course of their employmnt’ as that phrase is used in section 3223 to define a ‘ working level for persons. ’ The bleachers were designed to provide seating for spectators and not as a ‘ working level for persons. ’ ” Therefore, say the majority, section 3237 is inapplicable.
This interpretation is clearly wrong. It completely ignores *202other language in the same section that makes it crystal clear that it applies to bleachers which according to the majority are “designed to provide seating for spectators.” The section expressly says so.
Section 3237 provides: “(a) (NI) Platforms, runways, ramps or other elevated working levels four feet or more above floor, ground, or other working area shall be not less than two feet wide.
“(b) (SO) Platforms, runways, ramps, or other working levels four (4) feet or more above the floor, ground or other working areas shall be guarded by a railing on all open sides. Standard railing shall be provided where over-head clearance permits. The railings shall be provided with a toeboard where the platform, runway, or ramp is six (6) feet or more above places where employees may pass. ...”
The section contains nine exceptions. Exception (6) states: “Galleries, balconies or other elevated locations where seatings are arranged on platforms or successive tiers, may be protected by a substantial railing not less than 30 inches high which shall be placed at the front edge of the platform along the entire row of seats. ’ ’
Exception (7) states: “Existing platforms, balconies and galleries in places of employment where the prime exposure is to members of the public rather than to employees may be equipped with 36-inch high railings equivalent in strength ■and design to standard railings. ’ ’
It is obvious that the purpose of exceptions (6) and (7) is to make exceptions to the standard rail heights which are 42 to 45 inches under section 3225, but the important thing to us •here is that these exceptions show that the other provisions of section 3237 and its exceptions apply to bleachers where “seatings are arranged on platforms or successive tiers” and where the “prime exposure is to members of the public rather than to employees.” How clearer could the language be?
. The conclusion is inescapable that section 3237 was intended to apply to bleachers designed to provide seating for spectators, where the benches of the bleachers are used by employes in the course of their employment, whether or not the bleachers were designed for such use.
Section 3223, relied upon by the majority, is consistent with this view. The section merely states: “Working level or working area means a platform, walkway, runway, floor or similar area fixed with reference to the hazard and used by employees in the course of their employment. This does not include *203ladders or portable or temporary means used for access, repair or maintenance, provided such means are removed immediately upon completion of the work. ’ ’ A platform is defined as “an elevated working level for persons,” by section 3215 which also provides that “balconies and open-sided floors are considered platforms for the purpose of these orders. ’ ’ As the majority point out, it is undisputed the county employees stood on the bleachers in assembling, repairing, and maintaining them. Further, the evidence shows that the seat board was only 9 inches wide, that on the open side or back there was no toeboard, that on the open side the distance to the floor exceeded six feet, and that the area behind and below the bleachers was used as a walkway.
Section 815.6 of the Government Code provides: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular ldnd of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty. ’ ’
The Law Revision Commission comment to this section states: “This section declares the familiar rule, applicable to both public entities and private persons, that failure to comply with applicable statutory or regulatory standards is negligence unless reasonable diligence has been exercised in an effort to comply with those standards. Alarid v. Vernier, 50 Cal.2d 617, 327 P.2d 897 (1958) (setting forth general rule) ; Lehmann v. Los Angeles City Bd. of Educ., 154 Cal.App.2d 256, 316 P.2d 55 (1957) (applying rule to public entity). . . .” The latter ease, which like the instant one involved safety regulations of the Division of Industrial Safety adopted pursuant to sections 6312 and 6500 of the Labor Code, held that such regulations are for the protection of the public as well as employees (Porter v. Montgomery Ward & Co., Inc., 48 Cal.2d 846, 848 et seq. [313 P.2d 854]) , and that it was error to refuse an instruction that violation of the regulations was prima facie evidence of negligence.
In the instant case plaintiff requested instructions on the presumption of negligence arising from the violation of safety orders and particularly on the provisions of section 3237 of title 8 of the Administrative Code. No claim is made that the form of the proffered instructions was improper, and the evidence is clearly sufficient to show a violation of section 3237. The width requirement of the platform is obviously to prevent *204persons from falling.1 The refusal of the offered instructions was clearly error. There is no conceivable basis for concluding that the erroneous refusal of instructions on the presumption of negligence was not prejudicial.
I would reverse the judgment.
Tobriner, J., concurred.
Appellant’s petition for a rehearing was denied September' 21, 1967. Schauer, J.,* and Draper, J. pro tem.,† sat in place of Mosk, J., and Sullivan, J., who deemed themselves disqualified. Peters, J.,and Tobriner, J., were of the opinion that the petition should 'be granted.
It might also be urged that the toeboard requirement is not only to protect persons below from injury due'to falling objects but also to protect persons from falling. In any event, it was error to refuse the offered instruction.- , . - -
Retired Associate Justice - of the Supreme Court sitting under assignment- by the Chairman of thé Judicial Council.
Assigned by the Chairman of the Judicial Council,