Opinion
3-30-1950
RABER v. TUMIN et al. Civ. 17301.
Linnell & Smith, Charles T. Smith, Long Beach, for appellant. Spray, Gould, Duckett & Bowers, Malcolm Archbald, Los Angeles, and Max Z. Wisot, Long Beach, for respondents.
RABER
v.
TUMIN et al.
March 30, 1950.
Hearing Granted May 25, 1950. *
Linnell & Smith, Charles T. Smith, Long Beach, for appellant.
Spray, Gould, Duckett & Bowers, Malcolm Archbald, Los Angeles, and Max Z. Wisot, Long Beach, for respondents.
WHITE, Presiding Justice.
This appeal concerns the propriety of the granting of a nonsuit in an action arising out of personal injuries sustained by plaintiff and appellant while on the business premises of defendant and respondent Saul Tumin.
It was charged that while plaintiff was lawfully on the premises he was struck on the head by a ladder, timber or other object which defendant Tumin negligently maintained on the premises. Recovery was also sought against one Endriss, who was engaged in carpenter work on the premises at the time of the accident.
The scene of the accident was a store space 16 or 17 feet wide, facing north, with the front door very nearly in the center of the north wall. On either side of the front entrance were display windows. The area occupied by the display windows was separated from the rest of the store by a wall hereinafter referred to as the 'north' wall. Approximately 16 feet south of the north wall, there stood a partition extending from the east wall to the west wall, dividing the store space into two approximately equal areas. The accident occurred in the space created by the north wall, the partition, and the east and west brick walls of the building, an area 16 1/2 feet from north to south and 16 or 17 feet from east to west. These dimensions, while apparently accepted by all parties, are only approximations, no evidence as to exact measurements having been introduced.
Plaintiff, who was an electrical contractor, came to the store premises at the request of defendant Tumin to determine what electrical work might be needed. Defendant Tumin had just taken possession of the store as lessee. Plaintiff examined the electrical fixtures in the presence of defendant Tumin. Tumin then left the store. Defendant Endriss was working at the partition. After Tumin had left, plaintiff started toward the front door. The last thing he remembered before losing consciousness was that he was close to the front door. Upon hearing a crash, defendant Endriss came to the front of the store and found plaintiff lying face upward with the ladder across his body. The ladder was described as being constructed of one-by-six lumber that is, the sides of the ladder were one-by-sixes, approximately eight feet long. The treads were one-by-eights.
Plaintiff testified that prior to the accident the ladder was leaning against the north wall and near the east wall of the building.
In support of the order of nonsuit, respondent argues that the mere fact that the ladder was lying across plaintiff's body does not warrant an inference that it was the cause of his injury; that it was impossible for the ladder to have fallen sideways without the application of considerable force, and that under the evidence there was no way in which such a force could have been applied. It is argued that it is as reasonable to infer that plaintiff himself set the ladder in motion; and further, that since the accident is entirely unexplained, the doctrine of res ipsa loquitur is not applicable.
It is well established that on a motion for nonsuit the evidence must be viewed most favorably to the plaintiff, with every legitimate inference drawn in his favor, and conflicts disregarded. Barnett v. La Mesa Post No. 282, 15 Cal.2d 191, 99 P.2d 650; McClelland v. Acme Brewing Company, 92 Cal.App.2d 698, 207 P.2d 591. 'A nonsuit or a directed verdict may be granted 'only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff if such a verdict were given.' * * * Unless it can be said as a matter of law that, when so considered, no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it upon appeal, or the trial court to set it aside as a matter of law, the trial court is not justified in taking the case from the jury.' In re Estate of Lances', 216 Cal. 397, 400, 14 P.2d 768.
The basic fact upon which plaintiff's case depends is that the ladder fell. If this can be considered, for the purposes of a nonsuit, as legally proved, then the inference that the ladder was negligently left in an unstable position becomes permissible. Viewing the evidence in the light most favorable to plaintiff, we must assume that he did not himself disturb the ladder; that the ladder was leaning against the north wall a little distance out from the east wall; that plaintiff was nearing the east side of the front door and was perhaps from four to six feet or more from the ladder, when he was rendered unconscious. He was found with the ladder lying across his body. This evidence is, we think, sufficient to warrant an inference that the ladder fell upon him. Again, remembering that we are dealing with a motion for a nonsuit, the credibility of plaintiff's testimony, the accuracy of his recollection, or the possibility that 'retrograde amnesia' resulting from his injury might have caused him to forget that he himself set the ladder in motion, are not for this court to determine. The argument that it was a physical impossibility for the accident to have happened in the manner supposed under plaintiff's theory of the case is answered by the statement that, accepting plaintiff's testimony as true, as we must, the accident could have happened in no other way.
If an inference that the ladder fell upon plaintiff is justifiable, and we think it is, then the doctrine of res ipsa loquitur must be applied. This doctrine is one of necessity, to be invoked only when necessary evidence is not readily available. If the circumstances surrounding the accident are such that when tested by ordinary experience and observation it may reasonably be inferred that the defendant has failed to fulfill a duty he owed to the injured party, the rule should be invoked. Williamson v. Pacific Greyhound Lines, 78 Cal.App.2d 482, 486, 177 P.2d 977. The very theory upon which the doctrine is founded is that the plaintiff does not know what caused the accident. Metz v. Southern Pacific Co., 51 Cal.App.2d 260, 267, 124 P.2d 670. The three conditions prescribed as the bases of the doctrine of res ipsa loquitur (Ybarra v. Spangard, 25 Cal.2d 486, 489, 154 P.2d 687, 162 A.L.R. 1258), are present in the instant case. (1) Such accident does not occur without the negligence of someone. There is no proof that appellant felled himself. (2) It could have been caused only by the fall of the ladder, which was within the exclusive control of defendant Tumin. (3) The ladder's fall was not due to any contributing act of appellant.
Defendant Tumin, as invitor, owed plaintiff an affirmative duty to keep the premises in a reasonably safe condition. He was bound to inspect them with such care and as often as was necessary to ascertain whether they were safe. Moran v. Zenith Oil Co., 92 Cal.App.2d 236, 206 P.2d 679; Blumberg v. M. T. Inc., 34 Cal.2d 226, 209 P.2d 1. Not only must the occupant of premises abstain from wilfully injuring his invitee, 'but he owes such person the duty of maintaining his property in a safe condition, and of exercising reasonable care in protecting the invitee from injury through his negligence.' Stockwell v. Board of Trustees, 64 Cal.App.2d 197, 200, 148 P.2d 405, 406.
In the doctrine of res ipsa loquitur, the inference of negligence arises from the mere occurrence of the accident. Griffen v. Manice, 166 N.Y. 188, 196, 59 N.E. 925, 52 L.R.A. 922, 82 Am.St.Rep. 630. The adoption of such an inference from the mere occurrence of the accident is based upon human experience from which it is known that the events under immediate investigation do not ordinarily happen unless someone has been negligent. Although the falling of the ladder in the instant case, like the falling of an elevator (O'Connor v. Mennie, 169 Cal. 217, 146 P. 674, or that start downhill of a parked car (Price v. McDonald, 7 Cal.App.2d 77, 45 P.2d 425), might be explained by proof that they were not caused by the negligence of the person in control of them, nevertheless the plaintiff in each of them is entitled to have his case submitted to the jury under the doctrine of res ipsa loquitur. Under the authority of La Porte v. Houston, 33 Cal.2d 167, 169, 199 P.2d 665, and Escola v. Coca-Cola Bottling Company, 24 Cal.2d 453, 457, 150 P.2d 436, it may be announced as a rule that if the court can say, in the light of common experience, the accident was more likely than not to have been the result of the defendant's negligence, the doctrine of res ipsa loquitur is applicable.
To infer that the fall of the ladder leaning against the wall of respondent Tumin's store room was occasioned by reason of the latter's negligence in not removing it or laying it lengthwise on one side of the room, cannot be held not to be in harmony with universal experience and common sense. If respondent Tumin has an explanation of its presence, such explanation can be presented to the jury, to be by them weighed against the view that its position against the wall of the room where appellant as invitee entered in the prosecution of his duties was due to respondent Tumin's negligence.
Without impinging on the right of the jury to determine the ultimate fact as to the cause of the accident, it must be held that appellant was entitled to have the rule of res ipsa loquitur applied under the circumstances here present, where he entered a store at the request of the proprietor and while there was struck down. To so hold is no more unreasonable than to hold that one is possessed of such right who while walking along the street is struck down by an object falling from a building.
While the doctrine of res ipsa loquitur is applicable to respondent Tumin, the same cannot be said of respondent Endriss. The floor of the store was composed of asphalt tile; the side walls were of brick. There is no evidence on which to base an inference that any vibrations caused by Endriss' activities or that any other act of his caused the ladder to fall. Inasmuch as he was under no obligation to remove any dangerous instrument from the store, his sole responsibility being to perform his own work in a careful manner, the order of nonsuit as to him was correct. But in view of the foregoing conclusions that the doctrine of res ipsa loquitur is applicable to respondent Tumin, the order of nonsuit as to him was error.
The order granting the nonsuit as to respondent Endriss is affirmed. As to respondent Tumin the order is reversed and the cause remanded. Appellant to recover costs against respondent Tumin; respondent Endriss to recover his costs, if any, against appellant.
DORAN and DRAPEAU, JJ., concur. --------------- * Subsequent opinion 226 P.2d 574.