Montijo v. Western Greyhound Lines

• Decision Date: 14 August 1963
• Citation: 219 Cal.App.2d 342,33 Cal.Rptr. 184
• Parties: Antonia P. MONTIJO, Plaintiff, Appellant, and Cross-Respondent, v. WESTERN GREYHOUND LINES, a corporation, Defendant, Respondent, and Cross-Appellant. Civ. 6985.
• Court: California Court of Appeals Court of Appeals

Page 184

33 Cal.Rptr. 184

219 Cal.App.2d 342

Antonia P. MONTIJO, Plaintiff, Appellant, and Cross-Respondent, v. WESTERN GREYHOUND LINES, a corporation, Defendant, Respondent, and Cross-Appellant.

Civ. 6985.

District Court of Appeal, Fourth District, California.

Aug. 14, 1963.

Hearing Denied Oct. 9, 1963.

McCarthy & Pollock, Mark P. Robinson, Los Angeles, and Linley, Duffy & Smith, El Cajon, for plaintiff and appellant.

McInnis, Focht & Fitzgerald and John W. McInnis, San Diego, for defendant and respondent.

COUGHLIN, Justice.

This is an appeal by the defendant from a judgment after verdict in favor of the plaintiff, and from orders denying motions for a directed verdict and for judgment notwithstanding the verdict; and a cross-appeal by the plaintiff from an order granting the defendant's motion for a new trial. The plaintiff brought the action to recover damages for injuries sustained when she fell while descending a stairway in a bus depot owned and operated by the defendant bus company; contended that the injuries received as a result of her fall were caused by the negligent construction and maintenance of the stairway in that the handrails attached to the adjoining tile walls thereof did not extend to the bottom of the stairs, and the tile on those walls had been set at such an angle that in descending the stairway it appeared that the bottom of the stairs was at a place which, in fact, was a step above the bottom; and, after trial before a jury, obtained a a verdict and judgment awarding her damages. Prior to submission, the defendant bus company moved for a directed verdict. This motion was denied. Following entry of judgment it moved for a judgment notwithstanding the verdict, and also moved for a new trial. The court denied the motion for judgment notwithstanding the verdict and granted the motion for a new trial 'upon the ground of the insufficiency of the evidence to justify or to sustain the verdict.' The aforesaid appeals and cross-appeal followed.

PLAINTIFF'S CROSS-APPEAL

The plaintiff contends that in granting the motion for a new trial on the ground of the insufficiency of the evidence the trial court abused its discretion in the premises because the evidence establishes without substantial conflict that the failure to extend the handrails to the edge of the bottom step, and the angle at which the The plaintiff, as an invitee in the defendant's bus depot, used its restroom facilities, which were located on a mezzanine floor at the top of the stairway in question; after doing so, descended the stairway; was carrying a suitcase and a purse; at the last or next to the last step, fell; testified that she did not remember what caused her to fall, that she fell on her face, and that the next thing she remembered was two men picking her up and seating her on her suitcase; while so seated told a representative of the defendant company that as she was coming down the stairs she missed either the last or the next to the last step and fell; but, otherwise was unable to relate coherently what had occurred. The evidence leaves in an uncertain state whether the plaintiff told the company representative the she 'missed' or 'misjudged' the step at the time of her fall, and whether the step involved was the last or the next to the last. She was 80 years of age; weighed 160 pounds; was described by her daughter as 'quite heavy'; wore glasses, which were not broken by the fall; had high blood pressure, for which she was being treated; had arteriosclerosis which, from the testimony of her doctor, inferentially included cerebral arteriosclerosis; and also had osteoporosis, i. e., demineralization of the bone which causes it to become weakened.

tile had been set against the adjoining walls, created a dangerous condition; that the defendant's maintenance of the stairway in such condition constituted negligence as a matter of law; and this negligence proximately caused the injuries she received.

The stairway was four feet in width; the tread of each step, being that part thereof upon which a person stands, was 10 inches in depth; and there was testimony that, as a person descended the stairway, the handrails terminated on a vertical plane two inches beyond the tread of the next to the last step or, stated otherwise, because each higher tread overlaps that below it by two inches, the handrail extended four inches onto the tread of the bottom step. The plaintiff contends that the evidence establishes without dispute that the construction of the handrails in the manner indicated was not in accord with accepted practice, which required them to extend to or beyond the vertical plane even with the edge of the tread of the bottom step, and was contrary to an applicable building code, which directed that they extend to 'within one-half tread of the full length of each flight,' i. e., within the outside half of the tread of the bottom step in question. This contention is supported by expert testimony and the provisions of a building code ordinance. There also is evidence supporting the plaintiff's further contention that the shortness in the subject handrails gave the impression that the stairway ended at a point where the rails ended, which was not the fact and that the angle at which the tile had been set along the side walls accentuated this illusion. In other respects the stairway was constructed properly; was clean, dry and well lighted; and, at the time of the plaintiff's fall, was free of any debris.

In response to the question: 'And do you remember whether you used that handrail?', the plaintiff testified: 'Yes, I always did.' The plaintiff contends that this testimony establishes that she was using the handrail while descending the stairs; that she fell at a place beyond its terminus; and that the failure to extend the handrails to the edge of the bottom step, and the illusion with respect to the position of the landing place, proximately caused the injuries which she sustained as a result of the fall. The evidence does not unequivocally state whether the use of the handrail referred to in the plaintiff's testimony occurred while she went up the stairs or came down them; if the latter, which handrail was used; whether the rail was used during all of her descent; whether she was holding the rail at the time she missed or misjudged the step from which she fell; and how she was carrying both the suitcase and her purse.

Unless the failure to extend the handrails to the bottom of the stairway, or the illusion created by the shortness of the rails and the manner in which the tile had been set in the adjacent walls, was a proximate cause of the plaintiff's injuries, no liability attaches on account of its allegedly negligent construction or maintenance. (Blodgett v. B. H. Dyas, Co., 4 Cal.2d 511, 513, 50 P.2d 801; Puckhaber v. Southern Pacific Co., 132 Cal. 363, 364, 64 P. 480; Hill v. Matthews Paint Co., 149 Cal.App.2d 714, 722, 308 P.2d 865; Holmes v. Moesser, 120 Cal.App.2d 612, 614, 262 P.2d 27.)

In support of her position, the plaintiff makes two positive assertions which cannot be accepted, viz, (1) the evidence establishes unequivocally that she was using the handrail as she descended the stairs; and (2) the issue of proximate cause is not necessarily concerned with what originally prompted her fall but 'with the absence of support from the handrailing which would have been available regardless of the original cause of her fall.'

The only evidence in the record respecting the plaintiff's use of the handrail was elicited by the question: 'And do you remember whether you used that handrail?', to which she replied: 'Yes, I always did'; was ambiguous; required interpretation; and could have been rejected as untrustworthy. (Italics ours.) The plaintiff was asked whether she remembered whether she had used the handrail. Her 'Yes' reply may have indicated either that she remembered, that she used the handrail, or both. The volunteered additional statement, 'I always did', furnishes a reason for her 'Yes' answer; justifies the conclusion that her remembrance of the events was based on what she always did; indicates only her belief that she must have used the handrail on this occasion because she always used it; and practically destroys the verity of the statement. In addition, there was no inquiry as to the manner in which she was carrying her suitcase and her purse; whether one was in each hand or both were in one hand; if the latter, which hand was free; or whether she had no memory of these matters. The plaintiff testified that she was wearing glasses,...