Hawke v. Burns
| Decision Date | 22 March 1956 |
| Citation | 140 Cal.App.2d 158,294 P.2d 1008 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Laura A. HAWKE, Plaintiff and Respondent, v. T. M. BURNS, Individually, and as a copartner doing business as Burns Furniture Company, a corpartnership, and as executor of the estate of Charles Edwards Burns, deceased, Defendant and Appellant. Civ. 4976. |
Deadrich, Bates & Stewart, and Kenneth H. Bates, Bakersfield, for appellant.
Borton, Petrini, Conron & Brown, Bakersfield, for respondent.
This is an action against defendant T. M. Burns, individually, and as a copartner doing business as Burns Furniture Company, and as executor of the estate of Charles Edwards Burns, deceased, for damages for injuries due to a fall on a ramp between two sales rooms. Prior to trial defendant Charles Edwards Burns, one-half owner of the furniture company with his son T. M. Burns, died and the son was substituted as executor of his estate. Plaintiff, 62 years of age, went to a fixture-furniture store operated by defendant in the early afternoon of October 10, 1953, to make a purchase. The store premises consisted of four separate stores facing North Street, in Taft. These stores were on different ground levels separately by partitions. There were open doorways or archways leading from one room to another. The main entrance to the store was into the first sales room. The office was at the rear of this room, which room was about 17 feet wide. The entrance from this room to the second sales room to the east was an open double doorway or archway. The floor of the second sales room was between five and six inches lower than the floor of the main sales room. A ramp existed at that passageway to take care of the difference. It was covered with linoleum and a loose black rubber mat three feet wide. The second sales room to the east was about 17 feet wide, and between the floor of it and the third sales room there was a variation in the floor level of 2 1/2 to 3 1/2 inches over a distance of 16 inches. (The evidence is in dispute in this respect.) The archway at this point is about 16 feet wide, but showcases and other fixtures occupied over one-half of this space. Another declining ramp is located there to adjust the two levels. It was at this point where plaintiff fell. The floor was there covered with linoleum, tan in color, with asphalt tile of different colors set in the linoleum where the ramp declined. This was partially covered by a three-foot black corrugated rubber mat. This ramp was installed in 1938. The next sales room to the east (the Maple Shoppe) did not have any variation in the elevation of the adjoining floors.
Plaintiff testified that as she entered the main storeroom door, she first inquired at the office as to the whereabouts of a certain clerk; that it was indicated to her that she was in the 'Maple Shoppe'; that she then turned in an easterly direction, proceeded through the first archway and down that ramp without difficulty; that a man preceded her and that she followed about 10 feet behind him; that apparently he turned in another direction and she proceeded 'just as you would on a floor with no slope', and An 'X' mark was indicated by her at a point about the middle of the passageway and about half way down the 16-inch ramp as the place where she fell on the floor and severely injured her knee. The clerk in the Maple Shoppe noticed her and offered to assist her but she asked not to be moved. Later, with some difficulty, she walked out to her car, drove away, and secured a doctor, and a part of the patella was removed. It was indicated there would be some permanent and stationary crippling condition in the right knee. She testified she had never been in this portion of the store before, and that she would not consider the lighting on that afternoon very good. The counters and cases in the store were covered with various wares and there were a number of advertising signs posted about.
The evidence as to the height of the ramp at the point involved is in conflict and confusing. Defendant Burns, called under section 2055 of the Code of Civil Procedure, placed the variance in the level of the two floors at 2 1/8 inches at one point and 2 1/2 inches 'where the walking is done' because he measured it, but he 'guessed it was four to six inches before measuring because it looked that depth'; that the length of the ramp was 16 inches, and it was constructed in 1938.
A duly qualified architect testified he was familiar with the requirements of the Uniform Building Code of 1952 in that county and the photographs of the store in evidence. He was then propounded a hypothetical question by counsel for plaintiff, i. e., assuming he owned a store with a doorway 16 feet in width without a handrail or warning signs and with a drop between the top level and the bottom level of somewhere between 2 1/8 inches and 3 1/2 inches over a distance of sixteen inches would that construction be in accord with approved engineering and architectural practice in Kern County? Objection was made to the question on the ground that the evidence did not show the facts stated. Counsel for plaintiff then said he would later supply those facts. The objection was overruled and the answer was that the slope of a ramp considered to be in accordance with the best practice and adopted by the Uniform Building Code must not exceed 'one in eight', i. e., one inch in eight inches, and two inches maximum in height for 16 inches, and that two inches maximum height would only allow a 16-inch ramp; that at 2 1/8 inches the minimum standard would be 17 inches; that where the doorway ramp was 16 feet in length, good architectural and customary practice required a handrail to be placed in the center and one at either side of the extremities of the ramp; that any slope in excess of one inch in eight inches, regardless of width, requires a handrail, and for a passageway in excess of 88 inches in width would require a handrail. The witness stated that he had the Uniform Code with him and quoted the section from which he said he was reading. He stated he did not know the provisions of the Uniform Building Code in this respect in 1938, but he understood they were the same as he had stated, and the only way he could prove it would be to find an old issue. It was shown that none of the parties could find such issue.
During the trial plaintiff's investigator went to defendant's store and took measurements of the ramp and its elevation. Plaintiff's witness testified that it was 'just a hair under 3 1/2 inches on the side and 3 1/2 inches on the other, and the ramp extended out 16 inches. He testified he called a photographer to take a picture with a ruler so indicating and that defendant stopped him; that defendant called the officers and kept him from taking pictures until he had obtained the consent of his lawyer or a court order. A draftsman testified for defendant that he prepared charts indicating the variations in the height of the ramp at different levels and stated the lighting condition in the store, when the photographs were taken, was, as reflected by a light meter, average in light, and was 'at least as good or well lighted' as the average building with artificial illumination.
The clerk in the Maple Shoppe testified she saw plaintiff approach the ramp and she was looking back and talking to some woman when she was about four feet from the incline; that she turned to wait on a customer and shortly thereafter saw plaintiff in the process of falling in the middle of the ramp.
The theory upon which the jury found defendants to be negligent, of course, is not disclosed. There is evidence produced from a hypothetical question propounded to the architect to the effect that where the doorway and passageway of the ramp is 16 feet in width, a handrail in the center and at each end is indicated by the Uniform Building Code as the best practice. Although the doorway and ramp itself may be 16 feet in width at this point, the majority of the space was occupied by showcases and other fixtures and only about 8 feet or one-half of that space was used as a passageway. From the evidence there would be no requirement of three such handrails as indicated by the witness, and the answer of the witness in this respect was not based on the true factual situation. Accordingly, no negligence could be predicated upon this testimony and it was error not to grant the motion to strike this portion of the answer since it was one of the acts of negligence which plaintiff's counsel claimed they had established at the trial in his argument to the jury. Natural Soda Products Co. v. City of Los Angeles, 109 Cal.App.2d 440, 443, 240 P.2d 993; Preston v. Hubbell, 87 Cal.App.2d 53, 61, 196 P.2d 113.
Defendant contends that when specific acts of negligence are alleged, without alleging negligence in general terms, it is error to accept, over objections, evidence of other specific acts of negligence not pleaded, citing such authority as Marovich v. Central California Traction Co., 191 Cal. 295, 216 P. 595. The complaint does not directly allege that the failure to install and maintain three handrails at this particular ramp was one of the acts of negligence relied upon by plaintiffs. It pleaded, in general terms, that in respect to the specific claims of negligence, 'among other things, the said defendants and each of them were negligent in the manner in which they maintained, operated and conducted said store and premises'. Had the facts been as reported in the hypothetical question and answer, defendants could not be heard to complain in this respect. There is, however, the additional evidence that the ramp did exceed, by a small...
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