Eger v. May Dept. Stores

• Decision Date: 05 October 1953
• Citation: 261 P.2d 281,120 Cal.App.2d 554
• Court: California Court of Appeals Court of Appeals
• Parties: EGER v. MAY DEPARTMENT STORES et al. Civ. 19691.

Page 281

261 P.2d 281

120 Cal.App.2d 554

EGER v. MAY DEPARTMENT STORES et al.

Civ. 19691.

District Court of Appeal, Second District, Division 1, California.

Oct. 5, 1953.

Morton E. Feiler and Newell & Chester, Los Angeles, by Robert M. Newell, Los Angeles, for appellant.

Eugene S. Ives, Los Angeles, for respondent.

SCOTT, Justice pro tem.

Plaintiff appeals from an adverse judgment pursuant to verdict. She also states that she appeals from an order denying her motion for a new trial.

As a customer of defendant's department store, at three o'clock in the afternoon of March 14, 1950, plaintiff entered the parking area adjoining the Appliance Annex of defendant's Fairfax Avenue and Wilshire Boulevard Store in the city of Los Angeles. In her amended complaint plaintiff alleges that defendant negligently permitted empty whiskey bottles to be placed and to remain in this parking area; that as a direct and proximate consequence of the negligence of defendant in maintaining the parking area and in permitting empty whiskey bottles to be placed and to remain in the parking area plaintiff slipped and fell and sustained personal injury.

On appeal plaintiff asserts that defendant, 'negligently maintained the parking area behind the Appliance Annex as a result of which an empty whiskey bottle and other debris accumulated in a place reserved for use of the customers at the store; that the plaintiff slipped and fell on this whiskey bottle and suffered various personal injuries'.

She describes the parking area as follows:

'The parking lot is covered with blacktop and there are white-washed 4 X6 timbers running in a north-south direction with painted white lines marking the spaces for diagonal parking. At the northern tip of each of the 4X6s there is a triangular area bounded by white-washed 4X6s. The base of this triangular area runs parallel to Wilshire Boulevard and the sides of the triangle which are set at approximately 45 degree angles, more or less determine the angle of parking. The painted white lines marking off the parking spaces are approximately parallel to the respective sides of the triangle. The arrangement may be roughly compared to a skeleton of a fish with the 4X6s constituting the back bone and tail and the painted white lines the ribs of the fish.'

Plaintiff fell at or near one of these triangular area. In the triangle, according to testimony at the trial, there were an empty whiskey bottle and bits of paper, dirt and gravel. Plaintiff landed with her feet outside of the triangle and her head and body inside of the triangle. At the trial the following testimony of plaintiff was elicited:

'Q. By Mr. Ives: Now, actually, Mrs. Eger, you never saw the whiskey bottle, or whiskey bottles, yourself, did you? A. No. I didn't.

'Q. And during the last few seconds before the time when you fell, you were looking where you were going, weren't you? A. Yes, I was looking where I was going.

'Q. And when you say 'looking where you were going', you mean at the ground where you were stepping? A. Well, I, like the average person--you walk along, of course you can't always have you--you would be running into difficulties if you walked along looking on the ground, I imagine. Like any person walking to assure their safety, I walked, and here and there at times you can see the ground as well as what is ahead of you; but I'm sure I wasn't walking just looking on the ground every bit of the way, then I would have run into trouble with the traffic.

'Q. Now, you saw those triangles, didn't you? A. Yes.

'Q. And you knew those triangles were there? A. Yes.

'Q. And when the time came for you to get to those triangles you looked so you could step over them, didn't you? A. Yes.

'Q. And you did step over the triangles, didn't you? A. Yes.

'Q. So that at the time when you stepped over that triangle you were looking at the ground to see exactly where you were stepping? A. Well, I probably took only a second to look at the ground and then, naturally, I lifted my eyes and, of course, a whiskey bottle, or part of it, could have protruded from under that opening, There is an opening under those guards, so it could have been under there and perhaps just a bit of it with the other debris that was lying there extending, which my heel or something caught into--of course I can't tell you how I fell, I only know I fell on something, stepped on something.

'Q. You don't know anything yourself about how you fell, do you? A. Other than that I stepped on something and fell, and that is all I have of a clear recollection of my accident.'

Two points are made by plaintiff on appeal. First she declares that the trial court erred in permitting the following question to be asked by defendant's counsel, and the answer given by the witness Shields.

'Q. Now, do you have an opinion on such a self-service lot as you have here at the May Company Department Store, the Wilshire Department Store, as to how often it is reasonably necessary in the exercise of common practice to clean that parking lot? * * * A. I would say that once per week would be sufficient with periodic inspections in between to catch any unforeseen accumulation or debris or foreign matter.'

The witness had testified as to his extensive experience and activities relating to parking lots. The answer was developed and expanded on cross-examination of the witness by plaintiff's counsel as follows:

'Q. By Mr. Newell: Mr. Shields, I believe you stated you thought that a cleaning of this place once a week with periodic inspections in between would be reasonably good care? A. I do.

'Q. And what you mean when you say 'periodic inspection' is, say, like every hour? A. No, I would think twice a day, or even once a day, depending on what they find; I mean, that is all a matter of--I would say around Christmas time it would require more inspections than other times.

'Q. In other words, maybe like the days when they have a lot more people, inspect more often than the days they know they normally don't have as many? A. I don't know, I am just guessing at that, but that would be from a practical standpoint my answer, yes.

Plaintiff asserts that it was prejudicial error for the trial court to permit the witness to answer the question first above quoted because 'the matter was one within the common experience of ordinary persons'. It cannot be said, however, that the question and answer were erroneous or that they could have misled the jury. While ordinary persons have experience in the use of parking areas, that does not include knowledge of the operations needed to clean and maintain these areas.

'The opinions of nonexpert witnesses are admitted as a matter of practical necessity when the matters which they have observed are too complex or too subtle to enable them accurately to convey them to court or jury in any other manner. (Citing authorities.)

'* * * The ultimate question to be determined...