Sanders v. MacFarlane's Candies

• Decision Date: 04 August 1953
• Citation: 119 Cal.App.2d 497,259 P.2d 1010
• Court: California Court of Appeals Court of Appeals
• Parties: SANDERS et al. v. MacFARLANE'S CANDIES. Civ. 15455.

Page 1010

259 P.2d 1010

119 Cal.App.2d 497

SANDERS et al. v. MacFARLANE'S CANDIES.

Civ. 15455.

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

Aug. 4, 1953.

As Amended on Denial of Rehearing Sept. 3, 1953.

Hearing Denied Oct. 1, 1953.

Bohnett, Hill, Cottrell & Bohnett, San Jose, for appellants.

Campbell, Hayes, & Custer, San Jose, W. R. Dunn, Burlingame, for respondents.

NOURSE, Presiding Justice.

Plaintiffs, husband and wife, brought action for serious personal injuries suffered by the wife as the result of a fall in defendant's store in San Jose. Plaintiff in singular will hereafter refer to the wife. The cause was tried before a jury. Plaintiffs appeal from judgment of nonsuit entered at the close of their case. The only question presented is whether their evidence was sufficient to go to the jury.

Plaintiff's evidence supporting the action was in substance as follows:

Before the accident plaintiff was a dancing teacher, teaching ballet, tap, acrobatic dancing, et cetera. In the afternoon of May 16, 1949, she entered the store with her mother. She observed the floor. It was polished. '* * * the floor looked very shiny and pretty, and I remarked that the--the floor looked very lovely. Looks almost oily, I said, it was so shiny.' The floor was of a material similar to linoleum or asphalt tile. She asked a salesgirl for a certain kind of candy, of which she did not know the name but which she described. When the girl went to the rear of the store to get it, plaintiff followed her at the outside of the counter, walking along the middle of a wide aisleway to see whether the girl was getting the particular kind of candy plaintiff wanted. The floor appeared clean and she had no difficulty in walking on it. As a dancing teacher and dancer, she was accustomed to polished floors. When she had walked approximately half the depth of the store, where the salesgirl was getting the candy from behind the counter plaintiff turned and took a couple of steps toward the counter to see what kind of candy the girl was getting. When plaintiff was very close to the counter, right in front of it, both her feet at once went out from under her, 'both feet at once just zipped' and she landed on the floor on her left hip, facing the counter. (She was later found to have fractured the neck of her left femur in the fall.) She was momentarily dazed but turned around pushing with her hands on the floor until she sat with her back leaning against the counter. She sat there a few minutes trying to regain her composure. When she was sitting there she put her hands down on each side of her to hold herself and as she did so her 'hands sort of struck to the floor' right next to the counter. It was apparently very waxy, sticky, and she could feel it on her fingers. A saleslady came from behind the counter and took her name and address and asked whether she was hurt. While the saleslady was with her she heard a thump; she looked and saw to the front of the store a girl on the floor. The saleslady also looked up and said, 'My goodness. There goes another one.' Plaintiff did not remember details of the girl's fall; she herself was still in a daze on the floor. When she sat there she did not see any foreign objects on the floor. She had not turned her ankle when she fell. She was wearing very stable sport shoes.

The manager of defendant's San Jose store testified under section 2055, Code of Civil Procedure, that she did not know whether prior to the accident floor wax had been applied to the floor of the store. The janitor came in at night and took care of that. She did not know what was done with the floor. The janitor came once a week on the week-end. She believed he used to come in Sunday nights. Supplies for the janitor were kept in back of the store. Among them was liquid wax in gallon bottles and a mop. There was liquid wax in the storeroom at the closing of the store on Saturday evening preceding the accident (which happened on a Monday). She did not check on Monday to see whether any wax had been used. The janitor, who at the time of the accident worked for defendant, left for the East with his family more than a year before the trial. (He was not heard as a witness.)

Appellant contends that from the above evidence a jury was entitled to draw the inferences that defendant's janitor waxed the floor of the store during the week-end preceding the accident and left excess wax near the base of the counter and that plaintiff slipped because of that surplus wax; therefore the case should have gone to the jury. Respondent contends that the evidence did not permit any inference that it was the janitor who put any wax or a surplus of wax on the floor, or that he did so negligently, or that defendant had or should have had knowledge of the presence of the wax.

The position of appellant must be sustained. The parties agree and the rule is too well settled to require citation of authority that if inferences which can reasonably and fairly be deduced from the evidence can sustain the allegations of plaintiff it is error to grant a nonsuit. 'Whether a particular inference can be drawn from certain evidence is a question of law, but whether the inference shall be drawn, in any given case, is a question of fact for the jury.' Blank v. Coffin, 20 Cal.2d 457, 461, 126 P.2d 868, 870. An inference cannot be based on mere possibilities; it has been held that it must be based on probabilities. 32 C.J.S., Evidence, § 1044, pages 1132, 1133; Gardner v. Seymour, 27 Wash.2d 802, 180 P.2d 564, 569; Kentwood Lumber Co. v. Illinois Cent. R. Co., 5 Cir., 65 F.2d 663, 665. This accords with the general principle, enunciated more than once by this court that in civil cases the rule of decision is a rule of probability only. Spolter v. Four-Wheel Brake Service Co., 99 Cal.App.2d 690, 693, 222 P.2d 307; Wirz v. Wirz, 96 Cal.App.2d 171, 175, 214 P.2d 839, 15 A.L.R.2d 1129. 'It is not necessary, in order to establish a theory by circumstantial evidence, that the facts be such and so related to each other that such theory is the only conclusion that can fairly or reasonably be drawn therefrom * * *.' Katenkamp v. Union Realty Co., 36 Cal.App.2d 602, 617, 98 P.2d 239, 246. The plaintiff relying on circumstantial evidence does not have to exclude the possibility of every other reasonable inference possibly derivable from the facts proved. Vaccarezza v. Sanguinetti, 71 Cal.App.2d 687, 692, 163 P.2d 470; Spolter v. Four-Wheel Brake Service Co., supra, 99 Cal.App.2d at page 694, 222 P.2d 307.

It is true, as urged by respondent, that no inference of negligence arises upon proof of only a fall on defendant's floor. Vaughn v. Montgomery Ward &amp Co., 95 Cal.App.2d 553, 556, 213 P.2d 417. However here there...