Schifano v. Security Bldg. Co.
| Decision Date | 18 May 1955 |
| Citation | 133 Cal.App.2d 70,283 P.2d 306 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Ardine SCHIFANO, Plaintiff and Appellant, v. SECURITY BUILDING COMPANY, Doe One, Doe Two, Doe Three, Bridges Construction Company, Doe Four and Doe Five, Defendants, Bridges Construction Company, Defendant and Respondent. Civ. 16189. |
Morgan & Beauzay, Robert Morgan, San Jose, for appellant.
Rankin, Oneal, Luckhardt, Center & Hall, San Jose, for respondent.
This is an appeal from an order granting a motion for a nonsuit in favor of Bridges Construction Company. Plaintiff Ardine Schifano brought an action for damages against the owner of the premises, Security Building Company, for negligent maintenance of a defective condition on the premises, and against the contractor Bridges Construction Company, for negligent construction of a trash box of an abnormally dangerous nature which had been accepted by the owner, Security Building Company. Motion for nonsuit against the owner, Security Building Company was denied, and the jury returned a verdict in favor of that defendant. Appeals were taken as against both defendants, but that against respondent Security Building Company was dismissed, as said appeal was taken only from the order denying plaintiff's motion for a new trial.
Plaintiff Ardine Schifano was an employee of a tenant on the second floor of the building owned by Security Building Company in San Jose, California. Janitor service was not furnished to the tenants, but a waste can was provided by the owner on the second and third floors. About seven months prior to the accident, for the purpose of fire prevention, defendant owner through its manager, Charles Munger, directed Bridges Construction Company to construct a box around each of these waste cans, each box to have a lid which could be raised to allow waste paper to be deposited in the receptacles. The boxes and lids were asbestos lined, and the lids were to be closed at all times when not in use, in order that any possible fire would be smothered for lack of draft. It was to be built so that the lid would not rest up against the wall, according to the builders' testimony, and he stated that it would not rest against the wall unless it were pushed back against the wall by the user. Witnesses testified variously as to the weight of the receptacle's lid, one witness estimating that it was 15 pounds. One of defendant's counsel had it weighed during the time the trial was in progress and testified that the weight was 8 3/4 pounds. The box lid measured 20 inches by 32 1/2 inches and was attached to the box by hinges which were about 2 inches from the wall against which the receptacle was located. The box or receptacle was 40 inches in height in the front and 49 inches in the rear. After completion and installation of the waste receptacles and their acceptance by the owner, the contractor had nothing further to do with them.
Plaintiff had been working in the building at the time the waste receptacle was installed on her floor. She used the box possibly hundreds of times without incident in the seven months period prior to the accident. On the morning of October 10, 1950 she took two waste baskets down the hall to empty them into the receptacle. She lifted the lid with both hands, put it against the wall with both hands, emptied one basket and was leaning down emptying the second basket when the lid fell on her head, hitting her in the region between her eyebrow and hairline. She had always followed the same procedure in emptying the baskets, and this was the first time the lid fell. She did not know what caused it to fall. Plaintiff testified that the lighting was poor in the area where the receptacle was located, but that fact cannot be considered in the case against the building contractor as he had no control over that factor.
Mr. Munger, secretary-treasurer of the owner, testified that the lid was supposed to go up and stay back, but that it was to be always kept closed, and that on many occasions he found that it had been left open, and closed it himself. A Mrs. Stewart who had a place of business in the building testified that she used the waste receptacle frequently, that the lid would stay up against the wall if you didn't jar it, that there wasn't much of a lean to it. She could hold the lid part way back while she dumped her bucket. Her husband, who sometimes helped her, had once been hit on the nose by the lid. He testified that sometimes the lid would stay up without holding it. He could not say whether he had pushed the lid all the way back on the occasion when he got hit. The witness said that he was leaning over somewhat at the time, although he stated that it wasn't necessary to lean over. The janitor of the building admitted that the lid had once brushed against his shoulder.
Appellant contends that it was error to grant the non-suit in that there was evidence which tended to support the allegations of the complaint, and on such motion, testimony favorable to the plaintiff must be accepted as true. Hale v. Depaoli, 33 Cal.2d 228, 201 P.2d 1, 13 A.L.R.2d 183; Toschi v. Christian, 24 Cal.2d 354, 149 P.2d 848; Hall v. Barber Door Co., ...
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