Raber v. Tumin

Decision Date30 January 1951
Citation36 Cal.2d 654,226 P.2d 574
CourtCalifornia Supreme Court
PartiesRABER v. TUMIN et al. L. A. 21530

Linnell & Smith and Charles T. Smith, Long Beach, for appellant.

Spray, Gould, Duckett & Bowers and Malcolm Archbald, Los Angeles, for respondents.

SCHAUER, Justice.

Plaintiff seeks to recover damages for personal injuries. Named as defendants are Saul Tumin, who was the lessee of a store in which the injuries were received, and Tumin's employe Endriss, a carpenter. At the close of plaintiff's case the court granted the defendants' motions for nonsuit, and plaintiff appeals. We conclude that as to both defendants the matter should have gone to the jury.

The granting of a motion for nonsuit is warranted '* * * when, and only when, disregarding conflicting evidence, and giving to plaintiff's evidence all the value to which it is legally entitled, indulging in every legitmate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff.' (Card v. Boms (1930), 210 Cal. 200, 202, 291 P. 190; see also Golceff v. Sugarman (1950), 36 Cal.2d 152, 222 P.2d 665; Blumberg v. M. & T. Incorporated (1949), 34 Cal.2d 226, 229, 209 P.2d 1, and cases there cited.) 'Unless it can be said as a matter of law, that * * * no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it upon appeal, or the trial court to set it aside as a matter of law, the trial court is not justified in taking the case from the jury.' (Estate of Lances (1932), 216 Cal. 397, 400, 14 P.2d 768.) In other words, while in most appeals it is the duty of the reviewing court to indulge every reasonable intendment in favor of sustaining the trial court, substantially the reverse is true when the appeal is from an order of nonsuit. In the latter case the appellate court must view the evidence as though judgment had gone in favor of the appellant, and order a reversal if such a judgment can be sustained.

Stated in the light most favorable to plaintiff, the evidence may be summarized as follows:

Plaintiff, an eletrical contractor aged 36, at defendant Tumin's request went at about one-thirty o'clock in the afternoon to a store in the City of Long Beach, which Tumin occupied as lessee, in order to check for any changes that might be necessary in the wiring. Inside the store plaintiff noticed defendant Endriss, an employe of Tumin, hammering on a partition which divided the front, or 'show room,' of the store from the rear part thereof. The showroom was between 16 and 17 feet wide with the front door approximately in the middle on the north side, and about 16 1/2 feet deep from the front, or north, wall, to the partition. After plaintiff and Tumin had talked together for about ten minutes someone from outside called to Tumin and he left the store; plaintiff who was standing 'not very far from the center' of the showroom, turned to leave the store and 'believes' that as he approached the front door he saw a ladder standing 'almost vertically' upright against the front (north) wall at a point near the east wall; he was 'very close to the front entrance when I got knocked out'; he does not 'remember falling down'; he regained consciousness in the hospital. While in the store plaintiff saw no 'holes in the floor' or debris or 'obstructions of any kind' in his pathway; the floor 'was not so slippery' that he 'had difficulty holding' his feet on the floor; neither he, Tumin nor Endriss used the ladder while plaintiff was in the store; no one except plaintiff, Tumin, and Endriss was in the store; and during this period Endriss was standing on the floor while working.

Defendant Endriss testified that he had begun working in the store for Tumin on the Friday prior to the Monday on which plaintiff was injured; that in addition to demolishing the partition on which he was hammering, his work for $tumin was to include the setting of showcases and wall fixtures that Tumin 'had coming from another store'; that his hammering on the partition, which was eight feet tall, caused it to 'vibrate or to jump * * * some'; the floor, of composition tile, was slippery, heavily waxed, and he slid and slipped several times and fell down on it; when he entered the store the ladder, which was a ship's ladder eight feet long, with sides made of one by sixes and treads 'possibly' of one by eights, had been lying horizontally on its edge leaning up against the west wall of the store; he did not 'remember' using or observing anyone else use, the ladder; he heard, but did not see, plaintiff fall and discovered him lying near the east store wall with the ladder lying flat across his hips; plaintiff's head was approximately six feet west of the east wall and one foot south of he north, or front, wall, and his feet were near the east wall; at the time of the accident the light was very good and no one else was in the store. Endriss further testified as follows: 'Q. In this accident, when you were working for Mr. Tumin, you helped him move some showcases around, didn't you * * * A. Yes, that is true.

'Q. It wasn't simply carpenter work, it was some general handy man work, in addition to carpentering, although that was the principal detail? A. That is the line of our work naturally * * * .

'Q. Do you know whether or not on the day that Mr. Raber was injured, that there was any object of any kind or objects which were standing at any point in the easterly half of the front store room or show room? A. Not that I recall.'

The facts as to how and when and by whom the ladder was brought into the store, and as to by whom it was raised from a horizontal to a substantially vertical position, and who had charge of it, are not specifically shown, but we think the evidence hereinabove epitomized, considered with that hereinafter discussed, is sufficient to support a finding that defendants had possession of the store and of the ladder and that they were exercising dominion over such property.

According to defendant Tumin he had just signed the lease and taken possession of the store between 9 and 10 o'clock in the morning of the day the accident occurred, and at that time saw the ladder lying on the floor along the west wall of the store.

The doctor who examined plaintiff at the emergency hospital following the accident testified that plaintiff had suffered a fractured skull and that 'I don't believe it would be speculation to say that this man lying there unconscious with abrasions on his head, and bleeding from his ear, that there had been a blow to the head.' Plaintiff's wife testified that during the fourteen years of their marriage plaintiff 'has been very healthy. He has never been sick.'

Plaintiff was a business visitor toward whom Tumin, together with the servant through whom he was acting in altering the premises, 'was obliged to exercise ordinary care to keep the premises in a reasonalby safe condition, or to warn * * * of danger. The duty was not limited to conditions actually known * * * to be dangerous, but extended also to conditions which might have been found dangerous by the exercise of reasonable care. (Citations.)' (Blumberg v. M. & T. Incorporated (1949), supra, 34 Cal.2d 226, 229, 209 P.2d 1.)

Plaintiff urges that the evidence justifies application of the res ipsa loquitur doctrine, and that the nonsuit was therefore improperly granted (see Hinds v. Wheadon (1942), 19 Cal.2d 458, 461, 121 P.2d 724; Ybarra v. Spangard (1944), 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258). Defendants' position is that any judgment against them would be untenable because based upon nothing more substantial than speculation and guessing (see Reese v. Smith (1937), 9 Cal.2d 324, 328, 70 P.2d 933).

As declared in Ybarra v. Spangard (1944), supra, 25 Cal.2d at page 489, 154 P.2d 687, 'The doctrine of res ipsa loquitur has three conditions: '(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.' (Prosser, Torts, p. 295.)' A more detailed explanation of the applications, limitations and effects of the doctrine may be found in Dierman v. Providence Hospital (1947), 31 Cal.2d 290, 295, 188 P.2d 12. It has also been more specifically pointed out that 'the applicablity of the doctrine of res ipsa loquitur depends on whether it can be said, in the light of common experience, that the accident was more likely than not the result of their (defendants') negligence. (Citations.) 'Where no such balance of probabilities in favor of negligence can be found, res ipsa loquitur does not apply.' (Prosser on Torts (1941), p. 297.)' (La. Porte v. Houston (1948), 33 Cal.2d 167, 169, 199 P.2d 665.)

We are satisfied that a permissible view of the evidence here meets the several elements of the doctrine of res ipsa loquitur as above depicted. Certainly the accident appears to satisfy the first requirement: an invitee in a showroom is not ordinarily, in the absence of someone's negligence, struck on the head by a falling ship's ladder; secondly, the evidence tends to show that the instrumentality the ladder on the slippery floor in the showroom was within the exclusive control of defendants.

Although defendant Tumin testified that he had entered into possession of the premises only about four hours prior to the accident, Endriss stated that he himself had commenced 'working on the job' of 'demolishing' the partition for Tumin some three days earlier. It may thus be inferred that the defendants were not only in control of the store and of the ladder, but had had control for a sufficient period of...

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