Gilbert v. Pessin Grocery Co.

• Decision Date: 11 April 1955
• Citation: 282 P.2d 148,132 Cal.App.2d 212
• Court: California Court of Appeals Court of Appeals
• Parties: Rose GILBERT, Plaintiff and Appellant, v. PESSIN GROCERY COMPANY, a California corporation, doing business as Metrick Food Center, Defendant and Respondent. Civ. 20494.

Page 148

282 P.2d 148

132 Cal.App.2d 212

Rose GILBERT, Plaintiff and Appellant, v. PESSIN GROCERY COMPANY, a California corporation, doing business as Metrick Food Center, Defendant and Respondent.

Civ. 20494.

District Court of Appeal, Second District, Division 3, California.

April 11, 1955.

Rehearing Denied May 10, 1955.

Hearing Denied June 8, 1955.

Roger J. Pryor, Compton, for appellant.

Moss, Lyon & Dunn, Gerold C. Dunn, and Henry F. Walker, Los Angeles, for respondent.

ASHBURN, Justice pro tem.

Appeal from judgment upon verdict for defendant in personal injury action. Plaintiff does not question the sufficiency of the evidence to sustain the verdict, but claims prejudicial error in (1) excluding certain evidence of a prior accident and (2) giving certain instructions and refusing others.

On October 11, 1951, after dark, plaintiff Rose Gilbert drove into the parking lot behind defendant's market building which lot was maintained for the convenience of customers, and she was there as a prospective purchaser of some of defendant's goods, a business invitee. The parking lot was divided by a cement island or ledge which was about 6 inches high. This divider was the front line of numerous parking spaces marked off on the ground, some facing southeast and the others northwest. The market building occupied the east part of the property and the parking area the west portion. Plaintiff drove her car into a space to the west of the divider, which ran north and south. Her lights were on but she did not see the divider nor did her car strike it. She had never been there before and did not discover the existence of the divider or island until she stumbled over it and fell. When she drove up close to it and stopped with the front end of her car near the divider, there were cars parked to her right and left, but not immediately in front. She got out on the left side and her friend and companion, Mrs. Kathryn Stringer, alighted on the right. Mrs. Stringer was familiar with the parking lot and stepped over the divider without any difficulty. Plaintiff, though she says it was dark in the area, took a few steps forward (toward the market building), did not look down as she walked, saw no island or divider, stumbled on it and fell, sustaining injuries to her person.

Concerning lighting conditions plaintiff testified that as she was driving into the parking area she thought it was kind of dim; she saw no signs on top of the building; and no lights in the parking lot; there was no light shining up and down the island, which was the color of natural cement; the only lights she saw were coming through the entrance doorway; she probably did see lights on the front of the market. She and Mrs. Stringer testified that the place where she fell was dark, the parking area quite dark. Plaintiff also said she took Mrs. Mary Ridenour, who was night manager of the store, to the spot where she had fallen, told her it was dark and 'it should be light up there' to which Mrs. Ridenour replied: 'Yes, it is kind of dark here.' Mrs. Stringer testified that plaintiff said 'it is awfully dark' and the manager said 'Yes, it is.' This was substantiated by the Ridenour testimony to the extent that she said plaintiff claimed it was 'a little dark' and she said 'Yes, it is.' Plaintiff also said that on her way to the scene with the manager she did see the island, but only when she was right against it.

It was proved that the building had three floodlights on the west side, near the roof, each having two 500 watt bulbs; that light came through the open door and five sets of windows over the entrance; the front or north side of the building had a row of neon lights; there was a large electric sign 'Metrick's' on the roof and facing the parking area; and another one 'Metrick's Free Parking' on the west boundary of that area; a street light at the north end of the parking, and lighted stores with large luminous signs across the street from the parking. The defense evidence was to the effect that all these lights, including the floodlights, were burning at the time of the accident. If this evidence be accepted the parking lot, including the spot where plaintiff stumbled on the island, was well illuminated. On the other hand plaintiff's showing, direct and circumstantial, was sufficient to warrant an inference that the floodlights were not burning at the time of the accident and that the place where she fell was dark.

In this setting counsel for plaintiff called to the witness stand Mr. Oliver Jones, who was defendant's manager of that store until late July, 1951, and asked him this question: 'Q. Now, directing your attention to the parking lot on the west side of the premises there, at any time in the summer of 1951 was there an accident reported to you of someone falling over a raised portion of the divided area in the parking lot at night?' This evoked objections and considerable argument outside the presence of the jury. The court ruled that sufficient foundation for evidence of other accidents had not been laid. Finally an offer of proof was made in these words: 'At this time we make the following offer of proof, that Mr. Jones, if allowed to answer, would testify that in July of 1951 a woman fell over the island that divided the parking lot while walking toward the market at a time when one or more of the floodlights were out.' After further argument the court sustained objections to the offer, plaintiff's attorney remarked: 'I can't see any way to lay a foundation' and the judge said, 'Well, I think that ends it then.' This latter remark of counsel was merely a confession that he could not lay a foundation such as required by the court nor do more than he had done in that regard. Viewed in the light of the immediate context and the preceding discussion it cannot be held a consent to the court's ruling; it was submission, not agreement, that was expressed.

Another preliminary matter is the contention that the ruling was correct because plaintiff's offer embraced only hearsay. One of the legitimate purposes of evidence of other accidents is the proving of notice to defendant of existence of a dangerous condition. When that is the objective a report made to defendant's responsible agent is not subject to the hearsay rule. People v. Lang Transportation Corp., 43 Cal.App.2d 134, 140-41, 110 P.2d 464. If that were the only objection the evidence should have been received for the proper limited purpose and the jury instructed accordingly. If perchance there was the report but no such accident in fact, or if the circumstances were not comparable, it would be open to defendant to so show. Piollet v. Simmers, 106 Pa. 95, 111; 65 C.J.S., Negligence, § 234, p. 1052; see also, People v. La Macchia, 41 Cal.2d 738, 749, 264 P.2d 15.

The important question is whether the evidence was admissible at all. Construed together, as they should be in fairness, the quoted question and offer of proof amount to a tender of evidence that the former accident occurred at night and that a woman walking in the same direction as plaintiff fell over the island at a time when one or more of the floodlights were out.

The applicable general rule is well established and is stated in Westman v. Clifton's Brookdale, Inc., 89 Cal.App.2d 307, 312, 200 P.2d 814, 817: 'Evidence as to previous accidents, similar to the one in issue, is admissible upon the general proposition that such evidence tends to show the dangerous character of the place. Evidence showing that previous accidents have occurred under substantially the same general circumstances as the subsequent accident--the one in issue--tends to disclose the cause of the latter, tends to bring home to the person maintaining the place where the injury occurred knowledge of the dangerous condition of such place, and tends to establish negligence on his part.' Also in Jaehne v. Pacific Tel. & Tel. Co., 105 Cal.App.2d 683, 689, 234 P.2d 165, 169: 'Evidence of prior accidents which occurred under substantially the same general circumstances as the accident in question, is admissible to prove the existence of a defective or dangerous condition, to prove negligence, to prove notice, and to disclose the cause of the accident in question.'

It will be observed that such proof may serve at least four different evidentiary functions,--as proof of (a) existence of defective or dangerous condition, (b) the cause of the subject accident, (c) knowledge or notice of the dangerous condition, (d) negligence in permitting that condition to continue. But it is not necessary that the proffered evidence of previous accidents be probative in all those respects. If it fairly raises an inference upon one phase of the case it is admissible. Specifically, it should be received if it tends to prove a dangerous condition, even if it be not enough to constitute proof upon any of the other matters. This point is brought out by Professor Wigmore's treatment of the subject; he discusses separately the use of prior accidents for different purposes. 2 Wigmore on Evidence (3d Ed.) § 458, at page 472: 'The mass of precedents dealing with the use of other injuries (or 'accidents') as evidencing the dangerousness of a place or a machine are concerned with an inference of precisely this form, i. e. an inference as to the harmful tendency or capacity of the machine, highway, building, or track, as indicated by the occurrence of such harm to human beings in other instances.

'* * * the object of the inference is not to show previous acts of human negligence, nor even (directly and necessarily) a present negligence. The purpose is merely to show the nature of the machine or the place, as having a tendency to produce such human injuries; just as copper acids may have a tendency to destroy herbage or strychnia a tendency to produce convulsions. If it can be shown what that tendency is, it may then be possible to show that the maintenance of a place or machine...