Powell v. Jones

• Decision Date: 14 June 1955
• Court: California Court of Appeals Court of Appeals
• Parties: Mary Jessie POWELL, Plaintiff and Appellant, v. A. Q. JONES and Mrs. A. Q. Jones, Defendants and Respondents. Civ. 20878.

Page 856

284 P.2d 856

133 Cal.App.2d 601

Mary Jessie POWELL, Plaintiff and Appellant, v. A. Q. JONES and Mrs. A. Q. Jones, Defendants and Respondents.

Civ. 20878.

District Court of Appeal, Second District, Division 2, California.

June 14, 1955.

Rehearing Denied July 11, 1955.

Herlihy & Herlihy, Los Angeles, for appellant.

Moss, Lyon & Dunn, Robert C. Nye, and Henry F. Walker, Los Angeles, for respondents.

FOX, Justice.

Plaintiff appeals from a judgment of nonsuit in an action in which she sought to recover demages for personal injuries allegedly caused by defendants' negligence.

The facts developed at the trial have been embodied in a Settled Statement. We have extracted therefrom those portions pertinent to the determination of the propriety of the nonsuit. As thus edited, and with emphasis supplied in all cases, the facts recited are as follows:

'Mary Jessie Powell, the plaintiff * * * herein, was taken to the house of Mr. and Mrs. A. Q. Jones on August 21, 1952, in the afternoon, by Mrs. Jones to act as a 'baby sitter.' She was to be paid for these services. The premises * * * were two houses which had been joined sometime in the year 1950 by Mr. and Mrs. Jones and constituted their residence.

'Mrs. Powell's son lived in a house about fifty feet up the street, and it was plaintiff's custom after remaining at the Jones home for the night to go up and have breakfast with her son, who in turn would drive her to her own home in the morning. On the day in question, her son was ill, and she made arrangements with Mrs. Jones to obtain a ride to her home in the morning.

'About 6:30 or 7:00 p. m. on the day in question, Mr. and Mrs. Jones went out for the evening and left plaintiff in charge of the house. Around 8:00 p. m. plaintiff left the Jones' son, Michael, and her own grandson, both of about the age of seven years, in the living room of the Jones home on the second floor, watching television, while she went down the two flights of stairs from that room and up the path to the house of her son. She had never on previous occasions left the premises while engaged as a bady sitter for Michael. She stated that it was her purpose to advise her son of her other arrangements for transportation to her home in view of his illness, and also ascertain the extent of that illness.

'She explained that she did not call her son by telephone because three previous telephone calls had so upset the children watching television in the same room that she did not wish to disturb them again. She stated that she knew the telephone had a long cord which reached into the adjacent kitchen.

'It was dusk at the time she left the premises and she went down the two flights of front steps which were lighted to the path below and proceeded to her son's house, where she remained about five minutes. Upon her return, she came down the road which sloped toward the Jones house, and which consisted of decomposed granite. As she came down the road, she noticed a light shining in the bedroom window on the floor below the living room where the children were watching television, and decided that she would go directly to the bedroom to make preparations for putting the children to bed rather than to go to the top floor first.

'There was another stairway leading directly to the bedroom floor on the outside of the house. She faced this flight of stairs as she came down the slope toward the Jones home. There was no sidewalk, but merely the decomposed granite road which ran from her son's house parallel to these stairs and past the Jones house. She had passed these stairs earlier when walking to her son's house and on many previous occasions. At the foot of the stairs there was a concrete slab forming the landing about two and one-half feet by two and one-half feet, along the edge of that slab on the side farthest removed from the stairs, there was a five and one-half inch cement retaining ledge, intended to hold back the dirt and water from washing down the hill on to the concrete slab.

'The decomposed granite material of which the roadway was constructed extended in a smooth fashion from the road continuously up to the side of the house, and along the side of the house up to and including the ledge. There was nothing present to block a person's path from the approach used by Mrs. Powell. There was no railing or marking of any kind to indicate the necessity for a step down before stepping up to the stairway. Mrs. Powell testified that in the dusk of evening the approach to the stairway appeared to be of one color and to extend smoothly and continuously to the first step. She stated further that no one had ever warned her about the cement ledge, nor had anyone told her not to use the stairway, and she had in fact used it with Mrs. Jones when approaching from a different direction as indicated below.

'As Mrs. Powell approached the stairs, she angled off to the left from the roadway itself directly toward the first step, and her path would have carried her over the cement ledge to the cement slab base and then up the stairs. However, when she got to the stairs she did not notice the necessity for stepping down from the retaining ledge to the landing and then up to the first step, and when she stepped off the ledge into apparent space, she lost her balance and fell, resulting in a compound fracture of the left arm.

'Mrs. Powell had been to the Jones residence on many occasions and stayed with the child. She had passed up and down the roadway between the two houses on many occasions. On a very few occasions she had used the stairway upon which she fell, but on each of these occasions she had approached it from the opposite direction after arriving in the Jones car, and leaving the Jones garage. This garage was located between the two stairways mentioned above, and it was not necessary to pass over the concrete ledge in approaching the stairway from said garage. On the garage side, the decomposed granite ran smoothly up to the edge of the concrete slab base. For this reason, Mrs. Powell stated that she had never noticed the ledge holding back the dirt from the other direction.

'The stairway upon which she fell was not lighted by any direct light. However, there was light coming from street lights on the street below and from a window on the second floor porch, which outlines the stairway clearly, and Mrs. Powell stated that she was looking directly toward the stairs as she approached them. In order to reach the stairway leading to the second floor and the living room from which she had come, her route would have taken her past the stairs upon which she fell, past the garage, and then to the lighted stairway at the front. To reach the bedroom by that route she would have climbed two flights of stairs, walked through the living room, and descended one flight to the bedroom floor.'

After the above facts had been adduced, the trial judge aranted defendants' motion for a nonsuit. This appeal followed the ensuing judgment in defendants' favor.

The multitudinous authorities in which the propriety of granting a motion for nonsuit has been considered emphasize that nonsuits should be granted sparingly and only in those cases where there is rightfully no factual issue to be decided by the jury. Although it is the established rule that in passing upon a motion for a nonsuit all conflicts in the evidence must be resolved in favor of the plaintiff and every legitimate inference favorable to the plaintiff must be drawn therefrom, nevertheless a nonsuit must be granted where no other reasonable conclusion is deducible from the evidence, if, in short, the evidence is legally insufficient to support a judgment in plaintiff's favor. Nicholas v. Jacobson, 113 Cal.App. 382, 389, 298 P. 505; Zito v. Weitz, 62 Cal.App.2d 161, 164, 144 P.2d 409. Such is the character of the case before us.

In presenting her case, plaintiff takes the position that not only was her status that of a business invitee but she was also an employee. Conceding her dual status at the home of defendants when she assumed her duties as a baby sitter on the day in question, our inquiry will be directed to whether there is any evidence from which it may be inferred that defendants failed in the discharge of the particular duty of care owed her at the time and place of her injury.

A possessor of land owes to an invitee the duty of exercising ordinary care to keep his premises in a reasonably safe condition; and he will be liable for bodily harm, in the absence of an adequate warning, caused an invitee by a dangerous condition in the premises 'if he knows or should know of the danger which he has no basis for believing that the invitee will discover.' Popejoy v. Honnon, 37 Cal.2d 159, 170, 231 P.2d 484, 491; Crane v. Smith, 23 Cal.2d 288, 296, 144 P.2d 356; Jones v. Rridges, 38 Cal.App.2d 341, 346, 101 P.2d 91; Rest., Torts, sec. 343; 38 Am.Jur., Negligence, sec. 96. Similarly, an employer is required to use reasonable care to protect his employee by furnishing him with a suitable and safe place in which to work. Brown v. Sharp Hauser Contracting Co., 159 Cal. 89, 112 P. 874; Miller v. Pacific Constructors, Inc., 68 Cal.App.2d 529, 545, 157 P.2d 57. However, it is the law that the invitor is liable only for injuries caused an invitee by a dangerous condition existing in that part of the premises which the invitee may be reasonably expected to use in the proper exercise of his invitation. Powers v. Raymond, 197 Cal. 126,...