Plotts v. Albert

• Decision Date: 04 September 1953
• Citation: 260 P.2d 621,120 Cal.App.2d 105
• Parties: PLOTTS v. ALBERT et al. Civ. 8261.
• Court: California Court of Appeals

Page 621

260 P.2d 621

120 Cal.App.2d 105

PLOTTS v.ALBERT et al.

Civ. 8261.

District Court of Appeal, Third District, California.

Sept. 4, 1953.

Rehearing Denied Sept. 30, 1953.

Willens & Boscoe, Stockton, for appellant.

William C. Burns and Robert K. Barber.San Francisco, for respondents.

VAN DYKE, Presiding Justice.

Plaintiff-appellant, Anna Plotts, sought by this action to recover damages for injuries which she received while she was a tenant of a trailer rented to her by defendants-respondent.She alleged that her injuries resulted from a fall caused by stumbling over a stake protruding from the ground in an area reserved for the common use of the tenants of a trailer court owned and operated by respondents.The jury returned a verdict in favor of respondents, and plaintiff appeals.

Briefly, the evidence shows the following.Appellant was a woman 91 years of age.She was walking on or near a pathway in an area commonly used by trailer tenants.She stumbled over some object which she neither saw nor identified.From the testimony of other witnesses it could be properly inferred that the object was a small stake about three inches wide and less than an inch thick, embedded in the ground with the top protruding an inch or more above the surface.The stake was somewhat obscured from view by grass.No question is or could be raised that appellant was not lawfully using the area where she fell or that it was not an area for the common use of tenants.

Appellant urges reversal for the giving of an instruction on assumption of risk, and further claims that the evidence is insufficient as a matter of law to sustain the jury's verdict.We are satisfied that as to the latter assignment of error it cannot be sustained, and that in view of the evidence the issues as to respondents' negligence in the maintenance of their premises, and of appellant's contributory negligence in failing to see the stake over which it could have been inferred she fell, were equally questions of fact for the jury's determination.As to the first assignment of error, however, a different situation is presented.

Respondents requested that the court instruct the jury upon assumption of risk, and the court in doing so used an instruction which appears in 'California Jury Instructions, Civil,' commonly called 'B.A.J.I.'It is instruction No. 207 therein, and is intended as a general statement of the rule.Adapted to this case, it reads as follows:

'There is a legal principle commonly referred to by the term 'assumption of risk' which now will be explained to you:

'One is said to assume a risk when she freely, voluntarily and knowingly manifests her assent to dangerous conduct or to the creation or maintenance of a dangerous condition, and voluntarily exposes herself to that danger, or when she knows, or in the exercise of ordinary care would know, that a danger exists in either the conduct or condition of another, or in the condition, use or operation of property, and voluntarily places herself, or remains, within the area of danger.

'One who thus assumed a risk is not entitled to recover for damage caused her without intention and which resulted from the dangerous condition or conduct to which she thus exposed herself'(Italics added.)

Shortly after this case was tried the Supreme Court, in Hayes v. Richfield Oil Corporation, 38 Cal.2d 375, 240 P.2d 580, held this...