Laird v. T. W. Mather, Inc.

• Decision Date: 14 November 1958
• Citation: 331 P.2d 617,51 Cal.2d 210
• Court: California Supreme Court
• Parties: Ella S. LAIRD, Plaintiff and Respondent, v. T. W. MATHER, Inc. (a Corporation), Defendant and Appellant. L. A. 25048

Page 617

331 P.2d 617

51 Cal.2d 210

Ella S. LAIRD, Plaintiff and Respondent, v. T. W. MATHER, Inc. (a Corporation), Defendant and Appellant.

L. A. 25048.

Supreme Court of California

Nov. 14, 1958.

Moss, Lyon & Dunn, Sidney A. Moss and Henry F. Walker, Los Angeles, for appellant.

Adams, Duque & Hazeltine and James S. Cline, Los Angeles, for respondent.

TRAYNOR, Justice.

While descending the stairway to the basement of defendant's store, plaintiff, a 79 year old woman whose health and eyesight were good, fell on the bottom step and suffered a broken hip. A photograph of the stairway taken from the basement (defendant's Exhibit B, reproduced here) shows the stairway as it was on the day of the accident except that in addition to the handrails there was a rail on each side of the stairwell on the wings where the brackets appear. The handrail terminated approximately a step and a half short of the full length of the stairway. In this action for damages plaintiff testified that she used the handrail for support, that when she reached the end of the handrail she assumed that she had reached the bottom of the stairs, and that she then stepped forward and fell. At the trial, which was held four years after the accident, she testified at one time that she could not remember where she was looking when she fell and at another time that she was looking out into the lighted basement. Wares were on display in the basement in front of the stairs. Plaintiff testified that she did not recall looking at any particular display, but defendant's traffic manager testified that after the accident plaintiff stated to him that she had been looking at the merchandise in front of the stairway. There was testimony that at least fifty percent of the customers visiting defendant's department store were over 65-70 years of age, that defendant had notice of the condition of the stairway, and that extensions for the handrail had been ordered but had not been installed by the time of the accident. Two witnesses testified for defendant that the stairway did not violate the Pasadena Building Code and that it was constructed according to 'standard engineering practice.'

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The jury returned a verdict in favor of plaintiff for $9,540.18. Motions for a directed verdict, judgment notwithstanding the verdict, and for a new trial were denied. Defendant appeals from the judgment entered on the verdict and from the order denying its motion for judgment notwithstanding the verdict, claiming that the evidence was insufficient to establish liability and that certain rulings on admission of evidence and instructions to the jury were prejudicially erroneous.

I. Sufficiency of the evidence to support the verdict

It is conceded that the plaintiff was a business invitee at the time of the accident. Defendant was therefore obliged to exercise ordinary care to keep its premises in a reasonably safe condition or to give warning of latent or concealed dangers of which it knew or should have known in the exercise of reasonable care. Blumberg v. M. & T., Inc., 34 Cal.2d 226, 229, 209 P.2d 1; Blodgett v. B. H. Dyas Co., 4 Cal.2d 511, 512, 50 P.2d 801; see 2 Restatement, Torts § 343. Defendant contends that its motion for judgment notwithstanding the verdict should have been granted on the grounds that the evidence discloses as a matter of law that it exercised the required degree of care in the maintenance of its premises and that the plaintiff failed to exercise ordinary care for her own safety.

What constitutes 'ordinary care' under the facts of any particular case is usually a question for the jury, which must view the conduct as a whole in the light of all the circumstances. Thus, it is common practice for the jury to determine the standard of conduct to be applied within the compass of the broad rule that the prescribed conduct must conform to that of a 'reasonably prudent man under the circumstances.' See Peri v. Los Angeles Junction Ry. Co., 22 Cal.2d 111, 120-121, 137 P.2d 441; Clinkscales v. Carver, 22 Cal.2d 72, 75-76, 163 P.2d 777. In the absence of legislatively or judicially declared standards, the question whether or not the conduct of a party conformed to that of a 'reasonably prudent man' is left to the jury's determination when different conclusions may reasonably be drawn from the evidence. Neel v. Mannings, Inc., 19 Cal.2d 647, 656, 122 P.2d 576; Brandenburg v. Pacific Gas & Elec. Co., 28 Cal.2d 282, 285-286, 169 P.2d 909; McStay v. Citizens Nat. T. & S. Bank, 5 Cal.App.2d 595, 600, 43 P.2d 560. Applying this rule we have concluded that the question whether or not defendant failed to keep its premises in a reasonably safe condition was properly left to the jury. Defendant's customers included a large number of elderly persons. The jury could reasonably condlude that by ending the handrail short of the bottom step of the stairway, defendant created an unreasonable risk of danger, on the grounds that it could reasonably have been foreseen that the customers would assume that the handrail would continue the full length of the stairway, that their attention would be distracted by the display of wares offered for sale in the basement, that they would be preoccupied with the possibility of making purchases, ¹ and that they would rely on the handrail to help them safely to the basement.

Defendant cites several decisions for the proposition that it is not liable as a matter of law. In Holmes v. Moesser, 120 Cal.App.2d 612, 262 P.2d 27, the plaintiff fell on stairs that did not have a handrail even though a statute required that one be provided. In affirming a judgment of nonsuit, the court held that the absence of a handrail is not actionable negligence when there is no showing that this absence caused or contributed to the plaintiff's fall. In the present case there is evidence that plaintiff's fall was caused by the fact that the railing did not run the full length of the stairway. Marple v. Manspeaker, 88 Cal.App. 682, 263 P. 1022; Harpke v. Lamkershim Estates, 103 Cal.App.2d 143, 229 P.2d 103; and Darrach v. Trustees of S. F. Medical Ass'n, 121 Cal.App.2d 362, 263 P.2d 469, are likewise not controlling, for they hold only that no inference of negligence arises from the mere proof of a fall on a stairway. In all these cases the plaintiff's fall was left unexplained; there was no evidence that the particular stairs were unsafe or danagerous, that the defendant knew or should have known of a dangerous condition, or that the plaintiff fell because of any unsafe condition.

Defendant contends that the condition of the stairway was obvious and that it has no duty to warn of dangers that the ordinary person would perceive in the exercise of reasonable care for his own safety. For this proposition it relies heavily on Blodgett v. B. H. Dyas Co., 4 Cal.2d 511, 50 P.2d 801. In that case, while walking along a public street with her attention fixed on a window display, plaintiff fell into a recess from which a stairway led to the basement of defendant's store. Affirming a judgment of nonsuit, the court held that the plaintiff was contributively negligent as a matter of law:

'The evidence shows without conflict that the plaintiff heedlessly walked into an open stairway in broad daylight. She was a pedestrian on a busy street, paying no attention whatever to where she was walking. * * * A person walking through the busy streets of a large city is charged with the knowledge that there are many open stairways leading to basements of mercantile establishments. There is no duty to give any warning in broad daylight of the presence of a stairway, and persons must use their eyes to protect themselves from such obvious dangers. (Citations.)' 4 Cal.2d at pages 512-513, 50 P.2d at page 803.

Defendant contends that in the present case plaintiff could likewise have protected herself 'merely by using her eyes.' But it does not follow from the fact that plaintiff might have seen the last step had she looked that she was contributively negligent as a matter of law. All of the circumstances must be taken into account, and where there is some reasonable excuse for a failure to observe an obvious danger the conduct may be excused. Although a person may be charged, as a matter of law, with the knowledge that there are pitfalls to be avoided on a public street, it is not necessarily negligent to fail to watch for dangers in a business establishment when the ordinarily prudent person would not in fact expect to find the condition where it is, or where he is likely to have his attention distracted as he approaches it. (See Harper & James, The Law of Torts 1491-1493; Prosser, Torts, 2d ed., 459-460.) There are many cases involving accidents in mercantile establishments where the question of plaintiff's contributory negligence has been held to be a question for the jury even though the plaintiff failed to observe what may have been an obvious danger. For example, in Walsh v. Maurice Mercantile Co., 20 Cal.App.2d 45, 66 P.2d 181, 183, the plaintiff tripped and fell over a scale that protruded into the aisle of defendant's store. The court stated: 'Conceding that if plaintiff had looked she might have seen the scale, nevertheless, in the circumstances, she was reasonably justified in assuming that the aisle was unobstructed, and her failure to see it was not necessrily negligence. Different inferences might be drawn from the evidence * * * the question was one for the jury.' (See also Blumberg v. M. & T., Inc., 34 Cal.2d 226, 209 P.2d 1 (clearly visible opening in rug mat); Neel v. Mannings, Inc., 19 Cal.2d 647, 122 P.2d 576 (projection extending over the end of a stairway); Rau v. Redwood City Woman's Club, 111 Cal.App.2d 546, 245 P.2d 12 (worn and slippery stairs); Locke v. Red River Lbr. Co., 65 Cal.App.2d 322, 150 P.2d 506 (plainly visible crack in concrete floor).) In the present case we cannot say...