Opinion
Rehearing Denied Aug. 18, 1930
Hearing Granted by Supreme Court Sept. 11, 1930
Appeal from Superior Court, San Diego County; Charles C. Haines, Judge.
Action by Florence Watwood against E.D. Fosdick. Judgment for plaintiff, and defendant appeals.
Affirmed. COUNSEL
Wright & McKee and C.M. Monroe, all of San Diego, for appellant.
W.K. Brown and O.C. Ludwig, both of San Diego, for respondent.
OPINION
AMES, Justice pro tem.
This is an action for damages arising out of certain personal injuries sustained by plaintiff as a result of her having fallen down a stairway in a tenement house or flat owned and conducted by appellant. The case was tried by the court without a jury, findings and judgment were in favor of the plaintiff, and defendant has appealed upon a bill of exceptions.
It appears from the record that appellant purchased the property consisting of the building utilized as such flat and the lot on which it was standing in September, 1920. The building was two stories in height and had been constructed as a duplex residence. In the spring of 1921 appellant remodeled the building into a four-flat structure. This work was completed, and his first tenant moved into the property on June 9, 1921, and it was thereafter conducted by appellant as a flat. The building, as remodeled, contained four separate apartments for the accommodation of four separate families, each living independently of the other. Two of said flats were located on the first floor of said building and two on the upper floor. Access to the several apartments within the building was gained through a common entrance or hallway upon the lower floor, which communicated with the apartments on the second floor by means of a stairway. This entrance or vestibule and the stairway were used in common by all occupants of the building. The hallways and stairway were maintained by appellant, who personally did the janitor work in that portion of his building. It appears that he resided but a short distance from this property and visited the same at frequent intervals for the purpose of doing the janitor work therein and otherwise superintending the premises. The stairway above referred to was 50⅜ inches in width, was an inside stairway, that is, was built between two walls of the building and was not provided with a handrail. This fact, the importance of which will become apparent as the discussion proceeds, was not denied by appellant in his answer and was stipulated as a fact at the trial. Respondent rented from the appellant one of the apartments on the first floor of said building on the 20th day of February, 1926, and continued to occupy the same as a tenant up to and including the time that the accident occurred. The apartment occupied by her was completely furnished by appellant, the furnishings including all necessary cooking equipment, and respondent with such equipment prepared her meals in her own apartment.
On the 27th day of April, 1926, respondent had occasion to visit an acquaintance who occupied an apartment as a tenant on the second floor of said building. Her errand was of purely personal character. While descending the stairway upon her return to her apartment, she slipped upon one of the steps and fell down the remaining portion of the stairway and sustained injuries upon which this action is based. Respondent predicates the negligence of appellant upon two grounds:
First. That there was a break or tear in the underfoot covering on the steps of said stairway, which, she alleged in her amended complaint, had remained unrepaired for several days, which condition was known to the appellant, but was unknown to her, and that she tripped and stumbled on said break or tear in said floor covering which precipitated her to the foot of the stairway.
Second. That there was no handrail constructed along said stairway to which she could cling after she had stumbled as above set forth.
The court found that it was not true that there was a break or tear in the underfoot covering on the steps of said stairway but that said covering was old. The court further found that plaintiff tripped and caught her heel in said underfoot rubber covering and stumbled on one of the steps of said stairway and fell violently all the way down said stairway, there being no handrail to which she could cling. The court further found that such handrail was at all times necessary on said stairway in order to provide tenants, their guests and invitees therein with a reasonably safe means of ingress and egress to and from the apartments on the second floor of said building, and that, had there been a handrail on said stairway, the plaintiff could have saved herself from such fall, after stumbling on the stairway, and have prevented the resulting injuries.
The respondent testified that there was a rubber matting on the steps of the stairway which was old and very much worn, but that she did not notice any break or tear in said rubber matting. She describes her fall in the following language:
"Q. How did you come to stumble? A. I caught my foot in the matting— my shoe.
"Q. Well then what happened? A. I fell down the staircase, sir."
She further testified that on a former occasion she had visited her acquaintance on the second floor of the building; that she knew that the stairway was not equipped with a handrail and had been cognizant of that fact ever since she became a tenant of the appellant.
While the court found that the stair covering was old, it expressly found that the same was free from any break or tear and attributes the negligence of appellant to the absence of a handrail upon said stairway.
We are first confronted by the question as to the duty which a landlord owes to an invitee of a tenant upon his premises, for in leaving her own apartment and utilizing a stairway to visit her acquaintance on the second floor of the building upon an errand of a personal character, respondent assumed the status of an invitee rather than that of a tenant. In the case of Brown v. Pepperdine, 53 Cal.App. 334, 200 P. 36, 37, defendants leased a portion of the basement of their building to an automobile mechanic, but defendants and their tenant used a common entrance into said basement and while plaintiff, who was a commercial salesman, was entering the premises in the basement for the purpose of transacting business with said tenant, and was crossing that portion of the premises which was used in common by both occupants of the building, he sustained injuries as a result of the negligent operation of an automobile truck which was being driven by an employee of defendants. The court comments first upon the duty which the owner of the premises owes to a licensee and then proceeds as follows:
"If, on the other hand, the plaintiff was an invitee, the defendants would be liable to him for their mere failure to use ordinary care for his safety. ***
"We are of the opinion that the plaintiff, while using the common entrance to the basement to transact business with the tenant of the defendants, was an invitee of both the tenant and the defendants, and that, having been injured while he was such an invitee, the complaint states a cause of action against the defendants. It has been repeatedly held that when a building is let in flats or offices, the hallways, entrances, and stairways not being demised to the tenants but used in common by all, the landlord owes a duty to those visiting the premises to use ordinary care to avoid injuring them."
In Runyon v. City of Los Angeles, 40 Cal.App. 383, 180 P. 837, 841, it is said:
"The rule is that one who, upon the express or implied invitation of the tenant, enters or is proceeding to enter upon the leased premises, is an invitee, and as such stands in the shoes of the tenant. ***"
In the case of Hassell v. Denning, 84 Cal.App. 479, 258 P. 426, 427, the court concedes that in determining the responsibility of a landlord to his tenant for defects in the demised premises the doctrine of caveat emptor obtains, and that, in the absence of fraud, concealment or covenant in the lease, a landlord is not liable to the tenant for injuries due to such defects, but further holds that the rule is not absolute, but is subject to various qualifications, and says:
"Another qualification of the doctrine of caveat emptor in its relation to demised premises is that, where a portion of the premises is reserved by the landlord for use in common by himself and tenants, or by different tenants, a duty is imposed upon him to use ordinary care to keep those particular portions of the premises in a safe condition; and if he is negligent in this regard, and a personal injury results to a tenant by reason thereof, he is liable therefor."
In Hassell v. Denning, supra, the following rule appearing in 16 Ruling Case Law, at page 1037, is cited with approval:
"The authorities are not entirely in accord that it is the duty of the landlord, leasing to different tenants, to keep in repair such parts of the building as are for the common use of all the tenants, but it is generally held that where he retains possession of a portion of leased premises for use in common by different tenants, a duty is by law imposed upon him to use ordinary care to keep in safe condition this particular part of the leased premises, and if he is negligent in this regard, and a personal injury results to a tenant by reason thereof, he is liable therefor."
Hassell v. Denning, supra, also cites with approval the case of Cook v. Simon, 98 Conn. 98, 118 A. 634. In that case the child of a tenant of defendant was killed by reason of a fall due to a defective porch railing located upon a portion of the premises which was used in common by all of the tenants occupying defendant’s premises. In that case the court says, quoting from the syllabus:
"A landlord who made all repairs and frequently visited the building leased for examination with reference to repairs was charged with the duty of keeping a porch railing in a reasonably safe condition to prevent injury to tenant’s children."
We think that the evidence was sufficient to support the finding of negligence, by reason of the absence of a handrail upon the stairway. Appellant next contends that the evidence does not show any causal connection between the absence of a handrail and the respondent’s injuries.
Assuming that the appellant’s negligence did not cause respondent to trip her foot upon the stairway, we believe that the absence of the handrail was the proximate cause of the injury complained of. It is the rule in California that where injury results from two separate and distinct acts by different persons, operating simultaneously and concurrently, both are the proximate cause. 19 Cal.Jur. 572; Smith v. San Joaquin, etc., Corp., 59 Cal.App. 647, 211 P. 843; Merrill v. Los Angeles Gas & Electric Co., 158 Cal. 499, 111 P. 534, 31 L.R.A.(N.S.) 559, 139 Am.St.Rep. 134; Creek v. Nonpareil Inv. Co., 66 Colo. 550, 185 P. 473. We think that the causal connection between the absence of a handrail was a question of fact to be determined by the trial court and its finding will not be disturbed. In the case of Marton v. Jones, 44 Cal.App. 299, 186 P. 410, the plaintiff, while walking on a sidewalk on a public street, stepped on a pebble upon the sidewalk, causing her to fall, and in so doing, she was injured on a barbed-wire fence which was maintained by the defendant, adjacent to the sidewalk on property under his control, contrary to the provisions of a local ordinance. The defendant contended that there was no causal connection between the existence of the barbed-wire fence and the injury of the plaintiff. He contended that the plaintiff would not have come in contact with the fence had she not fallen, and she would not have fallen but for the pebble on the sidewalk, on which she stepped. But the court said:
"While the existence of the pebble on the sidewalk was an intervening contributing cause of the injury, nevertheless such fact should not exempt defendant from liability, if, according to the usual experience of mankind, the consequence ought to have been anticipated as a probable result of his negligent act. *** Hence the negligence predicated upon the agency responsible for the existence of the pebble upon the sidewalk cannot relieve the defendant from liability for the injury sustained by plaintiff, unless it appears so remote and disconnected in time and nature that it can be said the damage occasioned was in no way a natural or probable consequence of his wrongful act in maintaining the unlawful fence." Citing Lane v. Atlantic Works, 111 Mass. 136; Roots Co. v. Meeker, 165 Ind. 132, 73 N.E. 253; Merrill v. L.A. Gas, etc., Co., 158 Cal. 499, 111 P. 534, 31 L.R.A.(N.S.) 559, 139 Am.St.Rep. 134. See, also, Creek v. Nonpareil Inv. Co., 66 Colo. 550, 185 P. 473.
Appellant next relies upon the contributory negligence of respondent. In support of this defense, he invokes the doctrine of assumed risk and contends that her negligence consisted in her continued occupancy and use of the premises with knowledge of the absence of a handrail, citing and relying upon the cases of Daley v. Quick, 99 Cal. 179, 33 P. 859, and Smith v. Buttner, 90 Cal. 95, 27 P. 29; but in both cases the injury occurred on demised premises and the court correctly held that there was no liability on the part of defendant. Appellant also cites the case of De Motte v. Arkell, 77 Cal.App. 610, 247 P. 254. In that case, a fraternal organization, of which plaintiff’s intestate was a member, occupied premises under a lease which required it keep the premises in good order and condition at its own expense, and plaintiff met his death by reason of a defective guardrail on a balcony which was a part of the demised premises. Obviously, under the covenant in the lease, the defendant would not be liable and the court properly so holds. In all of the cases cited by appellant, the relation of landlord and tenant existed between respective parties or their representatives, and the accidents involved occurred on demised premises or their appurtenances. These cases are not in conflict with the rule announced in Hassell v. Denning, supra, which declares the rule governing the duty of an owner of premises toward an invitee. We think that the rule announced in this case is applicable here.
The judgment is affirmed.
We concur: CARY, P.J.; MARKS, J.