Action for damages for death of plaintiff's intestate. The appeals are from a judgment in favor of plaintiff and from an order of the trial court denying defendant's motion for a new trial.
James M. Jones was an employee of the Baker Iron Works, which was a subcontractor for steel work under the defendant, who was engaged, as contractor, in the construction of a large building in the city of Los Angeles. While Jones was engaged in his regular employment on the seventh floor of the building, one of the employees of the defendant in passing over and across the temporary floor above, broke through, causing one of the joists supporting the floor to break into two pieces, one of which fell and struck Jones, precipitating him down the light shaft some sixty or seventy feet to the lower floor and causing his death. The negligence relied upon consisted in the insufficient securing of the joist supporting the floor which was broken through, which does not seem to be or to have been contested.
Appellant contends in support of his appeal that the evidence does not support a finding of negligence upon the part of defendant in this, that it does not show that the death of Jones was due to the falling of the joist in question. This is upon the theory that there was no eye-witness who testified to seeing Jones struck, and that from the evidence in the case an inference might be drawn that Jones fell for some other reason. One of the employees of defendant testified that his back was toward Jones when he heard the cracking noise, that he turned around, saw the joist coming, one end falling toward Jones and the other toward himself. That he was so scared he couldn't say that he saw Jones struck, but he looked immediately after and Jones was missing from the place in which he had been. The foreman for defendant says the joist broke almost over where Jones was working, not more than two or three feet from directly over him. His body *Page 286 was found shortly after at the bottom of the light-well, broken, bruised and crushed by the fall. The doctrine ofPuckhaber v. Southern Pac. Co., 132 Cal. 363, [64 P. 480], is not applicable to such a state of facts. Neither is there any question of the burden of proof or the preponderance of evidence involved under the facts of this case, as in the case of Valente v. Sierra Ry. Co., 151 Cal. 534, [91 P. 481], cited by appellant.
Appellant's contention that plaintiff's intestate was guilty of contributory negligence by selecting an unsafe place to work in is equally without support in the record. The foreman for the Baker Iron Works testified that the place where Jones was working was perfectly safe, and there is no testimony in conflict with this, except that of the superintendent for defendant.
The instruction of the jury by the court that they were to take into consideration the loss of the comfort, society, support, and protection suffered by the widow and children of deceased, by his death, in estimating the damages which the plaintiff might recover, was proper. The action under section377 of the Code of Civil Procedure is a purely statutory one and the recovery is for the benefit of the heirs, and the bringing of the action by the personal representative of the deceased does not make the damages recovered a part of the estate of the deceased. (Munro v. Pacific Coast Dredging etc.Co., 84 Cal. 515, 528, [18 Am. St. Rep. 248, 24 P. 303].) The administrator as such has no interest in the matter, and brings the action only because the statute says so. He is made a statutory trustee to recover the damages for the benefit of the heirs. Unless it is shown there are heirs who can take, an administrator has no right of action. (Webster v. NorwegianMining Co., 137 Cal. 400, [92 Am. St. Rep. 181, 70 P. 276].)
No error appearing in the record, the judgment and order appealed from are affirmed.
Allen, P. J., and Shaw, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on April 17, 1909. *Page 287