Opinion
Page __
__ Cal.App.2d __324 P.2d 301Ella S. LAIRD, Plaintiff and Respondent,v.T. W. MATHER, Inc., a corporation, Defendant and Appellant.Civ. 22486.California Court of Appeals, Second District, First DivisionApril 21, 1958Rehearing Denied May 12, 1958.
Hearing Granted June 17, 1958.
[324 P.2d 303] Moss, Lyon & Dunn, Sidney A. Moss, and Henry F. Walker, Los Angeles, for appellant.
Adams, Duque & Hazeltine, Los Angeles, for respondent.
LILLIE, Justice.
Ella S. Laird, plaintiff herein, instituted this action to recover damages for personal injuries sustained when she fell on the bottom step of a stairway leading to the basement of defendant's department store. As a result of the fall Mrs. Laird, age 79, suffered a broken hip, causing permanent disability. Trial before a jury resulted in a verdict for plaintiff in the sum of $9,540.18. Motions for a directed verdict, judgment notwithstanding the verdict and for a new trial were denied. Defendant appeals from the judgment and from the order denying its motion for judgment notwithstanding the verdict. It is not contended that the amount of the verdict is excessive.
The basement of defendant's department store was used for the sale of merchandise. It is conceded that Mrs. Laird was a business visitor. From photographs and other evidence it appears that handrails started at the top of the basement stairway and continued down the stairs to a point approximately a step and a half above the basement floor. Plaintiff testified that on the day of the accident she used the handrail to help herself down the stairway and that upon reaching the end of the handrail she assumed that she was on the basement floor, stepped forward, and fell over the last step and a half. Plaintiff visited the store about twice a year, sometimes using the elevator and at other times making use of the stairway. Mrs. Laird, past 83 at the time of trial, could not remember whether she was looking down at the steps, but stated, 'Well, I was looking out ahead of me, toward the--out into the room where the lights were.'
Plaintiff contended at the trial that one of the purposes of a handrail is to guide a person to the floor below and that since the handrails here did not continue the full length of the stairway, an unsafe condition existed which was the cause of the accident. The defendant claimed plaintiff was guilty of contributory negligence in letting go of the handrail without looking to see whether there was any other step.
Appellant's contention that the trial court erred in refusing to grant a judgment notwithstanding the verdict is predicated on the theory that the proprietor of a business establishment is not negligent in failing to anticipate that persons will not exercise ordinary care or use their own faculties, particularly of sight, to ascertain where they are walking and that a person who fails to do so is, as a matter of law, precluded from recovering damages.
[324 P.2d 304] To rule otherwise, urges appellant, would make the land possessor an insurer of the safety of all invitees who, descending a stairway on the premises, did not use their eyes to protect themselves.
Decisions cited by appellant in support of this point are not persuasive. Some of these cases merely confirm the rule that no inference of negligence arises from the mere proof of a fall on a stairway. Had there been no other evidence in the instant case but proof that the plaintiff fell, such rule would undoubtedly apply. But such is not the case here. The evidence was sufficient to establish both the negligence of the defendant in maintaining the stairway and proximate cause. Appellant concedes that 'in considering whether the judgment is supported, the evidence must be viewed in favor of respondent' but nevertheless contends that plaintiff, as a matter of law, is precluded from recovering damages. Its contention is untenable.
Under the evidence disclosed by the record the jury was presented a question of fact and called upon to determine whether maintenance of the defendant's stairway with stair rails ending before reaching the bottom of the stairway amounted to negligence, which was a proximate cause of plaintiff's injury, and whether the plaintiff's failure to observe conditions and look where she was going was contributory negligence, which would preclude recovery. The jury determined this question of fact in favor of the plaintiff and it cannot be said upon a review of the entire record that such determination was not supported by substantial evidence.
This same matter was canvassed by the trial court on a motion for a directed verdict, motion for judgment notwithstanding the verdict and on a motion for a new trial, and likewise determined in plaintiff's favor. Clearly, plaintiff was not precluded, as a matter of law, from recovering judgment. It was not unreasonable to conclude from the evidence that Mrs. Laird was in the exercise of due care, having had a right to believe that a handrail ostensibly installed to conduct one safely from ground floor to basement was correctly designed for that purpose and that such handrail would not terminate before the bottom of the stairway was reached. Furthermore, there was evidence to the effect that this condition had been previously called to defendant's attention and that changes had been ordered by it but not yet effected.
Insofar as the law is concerned, the present case is not unlike Gerard v. Wilson Holding Co., 79 Cal.App.2d 553, 180 P.2d 380. In that case respondent fell from steps leading from the side entrance of an apartment building. There was a guard rail at the outer edge of the upper platform but no rail on the outside of the steps or the lower platform. As she left the door she stepped onto the upper platform and assuming that the guard rail extended down the steps, reached for it and finding none, lost her balance and fell. The court held she was not guilty of contributory negligence as a matter of law. Said the court at page 555 of 79 Cal.App.2d, at page 381 of 180 P.2d: 'When respondent stepped onto the upper platform her hand engaged the railing and she had a right to expect that the same protection would extend along the steps as that which had been installed on the platform.'
From the fact that Mrs. Laird might have seen the last step had she looked, it does not follow that she was guilty of contributory negligence as a matter of law. This was a question of fact for the jury. Such is the holding in many cases, for example, Walsh v. Maurice Mercantile Co., 20 Cal.App.2d 45, 49, 66 P.2d 181, 183, in which the court stated: 'Conceding that if plaintiff had looked she might have seen the scale, nevertheless, in the circumstances, she was reasonably justified in assuming that the aisle was unobstructed, and her failure to see it was not necessarily negligence.' A similar holding is found in Rau v. Redwood City Woman's Club, 111 [324 P.2d 305] Cal.App.2d 546, at page 550, 245 P.2d 12, at page 15, in which the court stated: 'Whether plaintiff's action was reasonable and prudent under the circumstances was for the jury to decide as an issue of fact.'
The appellant further contends that the trial court erred in admitting evidence relating to prior accidents, which error is alleged to be highly prejudicial. This point relates to testimony of one George Falk, defendant's maintenance supervisor. He testified that prior to Mrs. Laird's accident, he had a conversation with Mr. Kalik, defendant's vice president and controller, to the effect that he had heard from one of the employees that someone had almost fallen on the stairs, that Kalik had directed him to put extensions on the rails, and that these had been ordered but had not been installed.
Appellant's classification of this testimony as evidence of 'asserted prior accidents' and the argument that it was objectionable because there was no showing that the prior accidents had occurred under similar circumstances and that such evidence was hearsay and not binding on appellant are without merit. A careful reading of the entire testimony of Mr. Falk shows that the trial court merely allowed the witness to testify in respect to the matter of notice given to the defendant concerning the condition of the stairway and Mr. Kalik's directions to put extensions on the stair rails. Evidence of prior accidents or asserted prior accidents as such was not allowed by the trial court. In fact, the frial judge summarized the matter correctly in the following words: 'This is my position: I believe that these statements of other employees to this witness cannot be deemed to be proof that those acts did occur, but the conversation which he may have had with the employer would be admissible as notice to him of a condition which may or may not have been dangerous, according to the circumstances.' That portion of Mr. Falk's testimony relative to his conversation with Mr. Kalik was admissible to show knowledge of the condition of the stairway and handrail on the part of Mr. Kalik. This is sustained under the general rule stated in Gilbert v. Pessin Grocery Co., 132 Cal.App.2d 212, 216, 282 P.2d 148, 153, 'One of the legitimate purposes of evidence of other accidents is the proving of notice to defendant of existence of a dangerous condition. When that is the objective a report made to defendant's responsible agent is not subject to the hearsay rule.'
Appellant maintains that the trial court erred in permitting plaintiff's counsel to cross-examine a defense witness on the Municipal Building Code of the City of Los Angeles, although the accident occurred in Pasadena. The record discloses that defendant's expert witness, Mr. Shields, a civil engineer practicing in southern California had, on direct examination, affirmed that the stairway and handrails conformed to 'standard engineering practice in the City of Pasadena as of December 17, 1952.' On cross-examination, plaintiff's counsel asked whether the witness limited his answers to standard engineering practice in Pasadena to which he replied: 'No, sir. That would also be anywhere in the world, so far as I am concerned.' The witness was then asked whether the stairs would have conformed to such practice 'in all of the City of Los Angeles' to which an affirmative answer was given. On further cross-examination the expert stated that he was familiar with the Municipal Building Code of Los Angeles. In overruling objection to this testimony, the trial court called attention to the fact that the witness had 'enlarged it to the world' and that Los Angeles 'is a good part of the world.'
No prejudicial error is discernible in respect to this matter. The witness, a qualified expert, had made the sweeping statement that the stairs and railings were in compliance with proper practice anywhere in the world. Plaintiff's counsel then directed the cross-examination into channels calculated to show that the broad statement made by the witness could not have been true. This he had a right to do [324 P.2d 306] to test the credibility of the witness. Inyo Chemical Co. v. City of Los Angeles, 5 Cal.2d 525, 55 P.2d 850; People v. Houser, 85 Cal.App.2d 686, 193 P.2d 937. Under the long established rule that a wide latitude is permitted for the purpose of testing accuracy, veracity, knowledge and credibility (Newman v. Los Angeles Transit Lines, 120 Cal.App.2d 685, 262 P.2d 95; Laguna Salada Union Elementary School Dist. v. Pacific Development Company, 119 Cal.App.2d 470, 259 P.2d 498), we cannot hold such cross-examination improper, and that appellant suffered prejudice therefrom.
Appellant's next ground for reversal is that since plaintiff testified fully as to her acts and conduct in descending the stairs there is no room for the application of the presumption of due care and the giving of the instruction thereon was prejudicially erroneous.
On the authority of Mar Shee v. Maryland Assurance Corp., 190 Cal. 1, 210 P. 269, and the many other cases approving the rule in that case, the instruction embodying the presumption of due care can be properly given except in a case in which the presumption has been overcome by facts established by the uncontradicted testimony of the party who would be benefited by the presumption or his witnesses, under circumstances which afford no indication that the testimony is the product of mistake or inadvertence and when the fact so proved is wholly irreconcilable with the presumption sought to be invoked.
In reviewing the record in the instant case, we find nothing in the plaintiff's testimony that is wholly irreconcilable with the presumption of due care, nor can we find that the presumption has been overcome by facts established by the uncontradicted testimony of the plaintiff. Appellant in its argument fails to take into consideration that contributory negligence was a vital issue in the case and involved the question where Mrs. Laird was looking immediately prior to and at the time of the accident. Here the presumption of due care aided the plaintiff only with respect to the issue of fact of whether she was contributorily negligent. On the critical point of her conduct and where she was looking, Mrs. Laird testified at different times that she wasn't looking down at the steps, that she was looking out into the basement; that she wasn't looking at any merchandise and that she really didn't recall where she was looking. Contrary to this, Mr. Harmon testified that she had stated to him just after she fell that she had been 'looking at the merchandise out in the open in the front of the stairwell.'
Under this state of the evidence it cannot be said that plaintiff's evidence was 'uncontradicted' or that it established without conflict all of her acts and conduct immediately prior to and at the time of the accident. As to whether plaintiff's testimony was given under circumstances which afford no indication that it was the product of mistake or inadvertence it is proper to consider facts pertinent to her condition at the time she testified. The record shows that the trial took place almost four years after the accident; that plaintiff's condition had by then greatly deteriorated primarily because of the injury she received as a result of the accident herein and through infirmities of old age; that she was 83 years old; that her memory was faulty and very poor; and that she failed to recall not only where she was looking immediately before and at the time she fell but other matters of importance relating to the incident. Mrs. Laird's testimony was not full or complete. She could not remember where the steps were located, their height, construction or their color. She could not recall whether there was merchandise on the counters, whether the stairs were in the same condition when she used them before, if the steps were lighted or where she was looking just before she fell.
We cannot apply the case of Rozzen v. Blumenfeld, 117 Cal.App.2d 285, 255 P.2d 850, and similar cases cited by appellant holding that the instruction embodying the presumption of due care should not be given where the 'plaintiff testified fully as [324 P.2d 307] to her acts and conduct' to a situation such as this in which the testimony of a 83-year old woman, whose memory is faulty, given some four years after the accident, is manifestly uncertain as to what exactly took place other than the fact that she fell at the foot of the stairs. The record shows she was not able to testify 'fully' as to her acts and conduct.
We hold therefore, under all the circumstances of his case, the presumption of due care was not dispelled and it was not error for the trial court to give the due care instruction.
Finally, appellant charges reversible error in the giving of B.A.J.I. Instruction No. 213-E which informed the jury that, 'In applying the rules of law that have been and will be stated by the court to the facts of this case, and in judging the conduct of the parties, you may consider the fact that the attention of persons who visit public stores ordinarily is attracted by the display of wares offered for sale and may be more or less absorbed by the transactions which they have in mind. You may consider whether the defendant anticipated that fact with ordinary care in the exercise of the duty which I have defined; also, whether the plaintiff did or did not share that ordinary experience of store visitors, and, if so, what effect that fact had on her conduct in relation to the cause of the accident.'
Although it is true, as defendant states, that plaintiff herself did not testify that her attention was attracted by anything, it is not true that there is no evidence to support the instruction. The defendant's traffic manager testified that Mrs. Laird had told him that just before she fell she was 'looking at the merchandise out in the open in front of the stairwell.' In view of the evidence and the instructions considered as a whole, the giving of such instruction cannot be deemed reversible error.
The judgment and order appealed from are affirmed.
WHITE, P. J., and FOURT, J., concur.