Prescott v. Ralph's Grocery Co.

Decision Date29 January 1954
Citation265 P.2d 904,42 Cal.2d 158
CourtCalifornia Supreme Court
PartiesPRESCOTT v. RALPH'S GROCERY CO. L. A. 22826

Kenny & Morris and Eleanor V. Jackson, Los Angeles, for appellant.

Moss, Lyon & Dunn, Richard B. Coyle and Henry F. Walker, Los Angeles, for respondent.

GIBSON, Chief Justice.

Plaintiff brought this action to recover damages for injuries sustained when she fell on the sidewalk near an entrance to defendant's grocery store. The jury returned a verdict for defendant, and plaintiff has appealed claiming that the judgment should be reversed because the court assertedly erred in instructing the jury.

Plaintiff testified that she parked her car at the rear of defendant's store and walked to the entrance, using the sidewalk adjacent to the building. After making a purchase, she left the store and noticed that there was 'a lot of water' on the sidewalk and that there was no dry area between the building and the curb through which she could walk. She had not noticed any water when she entered the store. Upon 'very carefully' taking three or four steps on the wet sidewalk, plaintiff slipped on something and fell. She did not see any foreign substance in the water, but it looked dirty. Her dress was soiled, and, after it dried, there were 'little flakes of something' on it.

An employee of defendant testified that vegetables were unloaded at a receiving door near where plaintiff fell and that, occasionally, he had seen vegetable matter on the sidewalk. On the day of the accident he found some refuse there which he placed in a garbage container. He then washed the walk with two buckets of hot water and swept it 'completely clear of water.' According to his testimony nothing was left on the walk except some dampness. About fifteen or twenty minutes later someone reported to him that a woman had fallen on the walk. After the accident, some parts of the walk were damp and other parts appeared to be dry.

A preliminary question is presented as to the matters which plaintiff is entitled to raise on this appeal. She asserts that the trial court erred in giving certain instructions and in refusing to give others. Defendant claims that, by reason of a stipulation, plaintiff is limited to the asserted error in refusing to give requested instructions. Plaintiff originally elected to use a settled statement on appeal which asserted that 'the point to be raised by plaintiff on appeal is the contention that the trial court erred in refusing to give plaintiff's requested instructions Nos. 1 to 6 as hereinabove set forth.' Thereafter defendant agreed to advance the cost of preparing clerk's and reporter's transcripts if plaintiff would proceed by that method, and the parties stipulated in writing to use the transcripts as the record on appeal. The stipulation, which incorporates the quoted language set forth above, does not state that the recited contention is the only point to be raised, and plaintiff asserts that the language was used therein merely because defendant, who prepared the stipulation, copied the wording from plaintiff's proposed settled statement. While such a provision is appropriate as part of a settled statement, it does not appear to have been intended as a waiver of any points which plaintiff desired to make on the present record, and in the absence of a clear showing of such intent, plaintiff should not be precluded from raising any points she may have.

Plaintiff contends that the trial court erred in giving instructions * to the effect that 'One is said to assume a risk when she freely * * * and voluntarily exposes herself to (a) danger, or when she knows, or in the exercise of ordinary care would know, that a danger exists,' and that to bar recovery on this ground 'the person in question must have actual knowledge of the danger, or the conditions must be such that she would have such knowledge if she exercised ordinary care.' (Italics added.) The defenses of assumption of risk and contributory negligence are based on different theories. Contributory negligence arises from a lack of due care. The defense of assumption of risk, on the other hand, will negative liability regardless of the fact that plaintiff may have acted with due care. (See Prosser on Torts (1941), p. 377.) It is available when there has been a voluntary acceptance of a risk and such acceptance, whether express or implied, has been made with knowledge and appreciation of the risk. (See Rest., Torts, § 893.) Where the facts are such that the plaintiff must have had knowledge of the hazard, the situation is equivalent to actual knowledge, and there may be an assumption of the risk, but where it merely appears that he should or could have discovered the danger by the exercise of ordinary care, the defense is contributory negligence and not assumption of risk. Hayes v. Richfield Oil Corp., 38 Cal.2d 375, 385, 240 P.2d 580; see Prosser on Torts (1941), p. 386. In the present case, the instructions are erroneous since they permitted the jury to find that plaintiff had assumed the risk without finding that she had actual knowledge of the danger. Hayes v. Richfield Oil Corp., 38 Cal.2d 375, 384-385, 240 P.2d 580; Plotts v. Albert, 120 Cal.App.2d 105, 260 P.2d 621.

We cannot agree, however, that the court erred in refusing any of the instructions requested by plaintiff. In the first of these instructions the court was asked to tell the jury that 'You are instructed as to the doctrine of assumption of risk that the law is, that while a person assumes the perils which are naturally incident to the position he has taken, he does not assume dangers which come only from the negligent act of another.' (Italics added.) As we have seen, the elements of the defense of assumption of risk are a person's knowledge and appreciation of the danger involved and his voluntary acceptance of the risk. It follows that a person, if he is fully informed, may assume a risk even though the dangerous condition is caused by the negligence of others. See Lunsford v. Standard Oil Co., 84 Cal.App.2d 459, 466-468, 191 P.2d 82; Warnke v. Griffith Co., 133...

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    ...that the plaintiff voluntarily accepted a very specific risk with knowledge and appreciation of that risk. (Prescott v. Ralphs Grocery Co. (1954) 42 Cal.2d 158, 161, 265 P.2d 904; see Knight v. Jewett (1992) 3 Cal.4th 296, 325-326, 11 Cal.Rptr.2d 2, 834 P.2d 696 (dis. opn. of Kennard, J.).)......
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