Darrach v. Trustees of San Francisco County Medical Ass'n

• Decision Date: 19 November 1953
• Citation: 263 P.2d 469,121 Cal.App.2d 362
• Court: California Court of Appeals Court of Appeals
• Parties: DARRACH v. TRUSTEES OF SAN FRANCISCO COUNTY MEDICAL ASS'N et al. Civ. 15530.

Page 469

263 P.2d 469

121 Cal.App.2d 362

DARRACH v. TRUSTEES OF SAN FRANCISCO COUNTY MEDICAL ASS'N et al.

Civ. 15530.

District Court of Appeal, First District, Division 2, California.

Nov. 19, 1953.

Brobeck, Phleger & Harrison, San Francisco, for appellants.

Bronson, Bronson & McKinnon, San Francisco, for respondents.

NOURSE, Presiding Justice.

Plaintiff, a 78 year old lady, brought a negligence action for serious injuries suffered in a fall on the outside steps of the building at 2180 Washington Street in San Francisco, owned by the San Francisco County Medical Association and occupied by its Irwin Memorial Blood Bank, for which plaintiff was a volunteer worker. The cause was tried before a jury. At the close of plaintiff's case a motion for nonsuit was made on the grounds that no evidence had been introduced tending to prove negligence of defendants or that said negligence was the proximate cause of the injury, and that the evidence showed as a matter of law contributory negligence of, and acceptance of the risk of the use of the premises by plaintiff. Plaintiff appeals from the judgment entered on the granting of said motion.

It is not disputed that plaintiff was as to defendants in the position of a business invitee. Plaintiff's evidence consisted solely of her testimony, a photograph of the steps on which the accident took place and the testimony of one other witness, transcribed only in part, which contains no more than that she testified that the steps were made of grey-white marble and that they were quite wide, at least eight feet where plaintiff fell.

Plaintiff's testimony showed that the accident happened on October 18, 1950, at 5 o'clock P.M. when she left after having worked at the Blood Bank that afternoon. She had done volunteer work there one afternoon a week since the latter part of August of that year. Up to the time of the accident she had done so seven or eight times. She always left the building in the same way.

Her testimony together with the photograph in evidence shows that when leaving she first descended three or four steps to a large outer platform. On this she turned to the right to a flight of nine steps ending in a landing from which six further steps led to the lowest level. The first flight had broad stone balustrades at both sides. She was accustomed to go down these steps at the right side supporting herself with her hand on the right-hand balustrade until she came to the landing. This balustrade had newels (end posts) somewhat wider and higher than the balustrade itself, both at the upper platform and at the landing. The lower steps which she had to go down had a balustrate only at her left-hand side. She was therefore accustomed to cross over on the landing and put her left hand on that balustrade to support her in going down these last steps. The broad balustrade had nothing of which she could take hold.

On the day of the accident she started to follow the same proceedings. She first testified that in that manner she came down to the lower landing helping herself with her hand on the balustrade and that she fell when she was on the landing at a spot which she marked on the photograph. Thereafter she changed her testimony to the effect that the place marked was where she landed at the end of her fall. She marked the base of the right-hand newel at the upper platform (at the top of the upper flight of steps) as the place from which she fell, and testified: 'It began up there, right here, when I reached out to try to touch that balustrade. * * *' She marked as the place for which she reached the beginning of the balustrade itself, not the newel next to which she was standing. She fell when she was reaching for that location. She could not reach it standing erect but had to bend over when she reached for the balustrade. 'It was too low.' Under cross-examination she further testified that she had known the building since the year 1911 when she visited it as the private dwelling of the Irwin family. The stairway looked exactly the same as it did then except that then it was, of course, much newer. On every prior occasion she had managed to get down to the sidewalk in safety. This time she fell when she reached to put her hand on the top of the balustrade. She did not think she made contact with it. 'I just put my hand forward and then I fell.' She did not remember where she was looking at the time. She was not conscious of missing a step or slipping. 'No, I haven't any memory of that. I don't know how it happened. Q. You don't really know how it happened? A. No; the only thing I am conscious of is that reaching and the fall. Q. And then you simply fell? A. Yes, Yes.'

Appellant's main contention is that the above contains evidence of negligence of defendants and of causation of the damage by said negligence, substantial enough to go to the jury; that it shows negligence of defendants in not providing a functional handrail for the steps of the former private mansion now that it is used for a public purpose, and in leaving the old balustrade as an inadequate substitute for a handrail; that the proximate...