Edler v. Sepulveda Park Apartments

• Decision Date: 21 May 1956
• Citation: 297 P.2d 508,141 Cal.App.2d 675
• Court: California Court of Appeals Court of Appeals
• Parties: Christopher L. EDLER, a minor, by Henry G. Edler, his guardian ad litem, Plaintiff and Respondent, v. SEPULVEDA PARK APARTMENTS, a corporation, Defendant and Appellant. Civ. 21545.

Page 508

297 P.2d 508

141 Cal.App.2d 675

Christopher L. EDLER, a minor, by Henry G. Edler, his guardian ad litem, Plaintiff and Respondent, v. SEPULVEDA PARK APARTMENTS, a corporation, Defendant and Appellant.

Civ. 21545.

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

May 21, 1956.

Lee A. Solomon, Los Angeles, for appellant.

Seymour R. Winston, Beverly Hills and Stan Flinkman, Santa Monica, for respondent.

ASHBURN, Justice.

This is a personal injury action brought by a boy who was about three years old at the time of the accident. A jury rendered a verdict for defendant which appeals from an order granting plaintiff a new trial upon the expressed ground of insufficiency of the evidence to sustain the verdict.

Upon motion for new trial it is the function of the trial judge to make an independent appraisal of the evidence, including all permissible inferences, and to exercise a sound judicial discretion in determining whether the verdict effects a miscarriage of justice, and a reviewing court cannot disturb the order unless an abuse of discretion clearly appears. All presumptions are in favor of the order and it will be affirmed if sustainable on any ground. 'The trial court in considering a motion for new trial is not bound by a conflict in the evidence, and has not abused its discretion when there is any evidence which would support a judgment in favor of the moving party. Estate of Green, 25 Cal.2d 535, 542, 154 P.2d 692; Hames v. Rust, 14 Cal.2d 119, 124, 92 P.2d 1010. The only conflict may be the opposing inferences deducible from uncontradicted probative facts. In such case the trial court may draw inferences opposed to those accepted by the jury and may thus resolve the conflicting inferences in favor of the moving party, for 'It is only where it can be said as a matter of law that there is no substantial evidence to support a contrary judgment that an appellate court will reverse the order of the trial court.'' Ballard v. Pacific Greyhound Lines, 28 Cal.2d 357, 358, 359, 170 P.2d 465, 467. We must, for present purposes, accept as established all evidence and all reasonable inferences favorable to plaintiff's cause. The following discussion proceeds upon that basis.

Defendant owned and operated a rental project of some 60 units which were laid out in courts, each building having front and back yards. Plaintiff's parents were tenants in one of the apartments. The yards were equipped with sprinkler systems, the sprinkler heads being approximately flush with the lawn and scattered at intervals throughout the grass. This was true of the lawn in front of each of the apartments. These lawns were 50 by 100 to 125 feet in dimensions and were separated by ordinary cement walks. The accident happened on February 24, 1953. On that morning plaintiff's grandfather, Warren Lincoln, and a neighbor, Mrs. Kryske, saw defendant's gardeners cutting the grass and earth from around the sprinkler heads in front of the Edler residence. They made a hole around each, which was about six inches in diameter and three inches in depth. This hole extended beyond the sprinkler head to a width of about two inches. Though it was customary for a workman to follow with a wheelbarrow of sand the one who reamed out the hole and to fill the hole with sand, it is a fair inference that that did not happen with respect to the hole involved in the accident. When Mr. Lincoln and Mrs. Kryske looked at it after that occurrence it was still six inches in diameter and three inches in depth. The practice of filling the holes, as explained by Joe Mesa, defendant's head gardener, was an effort to keep the children away because of the danger of the holes. Children were accustomed to use these front lawns for play or any other adventure that might appeal to them. This they did every day. The fact was well known to defendant and its agents and the lawns were thus used with their permission.

In the afternoon of February 24th plaintiff's grandparents took him to market. Upon their return they were busy unloading the automobile when the grandmother heard plaintiff scream. She started toward him and her husband then heard and saw the plaintiff. He was lying on his back with his feet close to the sprinkler head, not quite touching it, and no one was near him. He had received a spiral fracture of the femur described by the specialist as a twisting injury from a fall with the leg in a twisted position. Appellant argues that the evidence does not warrant a finding of negligence or, assuming negligence, that it was the proximate cause of plaintiff's injury.

As to negligence, the above recital of facts shows inferentially a failure to fill the hole around the particular sprinkler head, a precaution that was considered to be necessary to the safety of children. Moreover, these were Moody sprinklers. Mr. Wallace F. Hammer, who specializes in the installation of that particular type of sprinkler, testified that if the sprinkler head for any reason becomes lower than the lawn the remedy is to install a longer nipple and thus raise it as desired. Also, that a hole if dug around the head fills with water and if the head is flush with the earth there is no purpose in making a hole around it. Al Jennings, gardener for the City of Santa Monica for over 12 years, testified to long familiarity with Moody sprinklers and further said he had not found it necessary in those years of experience to cut holes around the Moody heads and that he had never done so. It appears therefore that an inference of negligence could be drawn from the making of the holes around the sprinkler heads in an area frequented by young children with the knowledge and consent of d...