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District Court of Appeal, Second District, Division 1, California.

TUTTLE et al. v. CRAWFORD et al.*

Civ. 10474.

Decided: April 13, 1936

Hugh B. Rotchford, of Los Angeles (Everett H. Smith, of Los Angeles, of counsel), for appellants. Thomas M. Bergin, of Los Angeles, for respondents.

Mary V. Tuttle, one of the respondents herein, on November 28, 1934, at or about 8 o'clock in the morning, entered the market premises in which appellants Nizuno and Yamada had a vegetable concession. She passed by the concession of appellants, did some shopping in the rear of the market, and on returning to the front of the market again passed the concession of appellants, slipped and fell. The significant evidence of negligence was that given by the injured respondent. She testified that she fell on a “wet spot on the concrete floor, and on that wet spot there were two or three leaves of lettuce–looked like lettuce–leaves that were on the outside of the lettuce, they were greener and older than the head lettuce would be sold. * * *” In another portion of her testimony she testified: “* * * I saw the lettuce in the wet spot. * * *” The testimony excerpted is the result of her observations made after she fell. This testimony is partially corroborated by that of her husband, the other respondent, who testified that when she was brought home he washed what looked like “dirty looking slime with small dots of vegetable matter” off his wife's leg and dress.

It has been established by a long line of cases in this state that the keeper of a public place of business is bound to use ordinary care to keep his premises and the passageways to and from it in a safe condition, and must use ordinary care to avoid accidents or injury to those properly entering upon his premises. Brown v. Holzwasser, Inc., 108 Cal.App. 483, 291 P. 661. Whether or not appellants used ordinary care in the maintenance of their premises to avoid accidents and injury to those properly entering upon their premises was a question of fact for the jury. Williamson v. Hardy, 47 Cal.App. 377, 190 P. 646; Brinkworth v. Sam Seelig Co., 51 Cal.App. 668, 197 P. 427; Finch v. Willmott, 107 Cal.App. 662, 290 P. 660; Siegman v. Fetters, 59 Cal.App. 114, 210 P. 49; Long v. John Breuner Co., 36 Cal.App. 630, 172 P. 1132; Brown v. Holzwasser, Inc., 108 Cal.App. 483, 291 P. 661; Hodge v. Weinstock, Lubin & Co., 109 Cal.App. 393, 293 P. 80; Hook v. City of Sacramento, 118 Cal.App. 547, 5 P.(2d) 643; McClurken v. Ralph's Grocery Co., 130 Cal.App. 529, 20 P.(2d) 66; Touhy v. Owl Drug Co., 6 Cal.App.(2d) 64, 44 P.(2d) 405; Granucci v. Claasen, 204 Cal. 509, 269 P. 437, 59 A.L.R. 435. The cited cases demonstrate that evidence of the kind here adduced is sufficient to show negligence on the part of appellants in the case at bar. Appellants contend, however, that respondent Mary V. Tuttle was guilty of contributory negligence, because of the admitted fact that she passed by the concession of appellants on her way to the rear of the store, and her admission that she did not look at the floor as she walked to and fro in the market, and that she did not look at the floor immediately before or at the time she fell. Contributory negligence, however, like negligence, is a question of fact for the jury; and “when there is no conflict in the evidence, if different conclusions upon the subject can be rationally drawn from the evidence,” it is still a question of fact for the jury. Wahlgren v. Market Street Ry. Co., 132 Cal. 656, 663, 62 P. 308, 309, 64 P. 993.

The case, however, must be reversed because of prejudicial error in the giving of the following instruction: “You are instructed that the law presumes that a person takes ordinary care of his own concerns. I, therefore, instruct you that the law presumes that plaintiff, Mary V. Tuttle, exercised ordinary care for her own safety at the time of the accident here involved.”

In the case of Paulsen v. McDuffie, 47 P.(2d) 709, 714, our Supreme Court criticizes an identical instruction as follows: “In the present action, plaintiff was not only alive but was called as a witness and testified fully as to all of his actions just prior to and at the time of his injury. * * * It is difficult to see how there was any place for a presumption as to the plaintiff's conduct. What he did on that occasion was entirely covered by the evidence in the case, and there was neither necessity nor reason for indulging in any presumption upon that subject. That instruction had no place in this case and should not have been given. Had this been a case where the contributory negligence of the plaintiff would have defeated his claim for damages, the consequences following the giving of that instruction might have been most serious, and possibly might have required a reversal of the judgment. In the present action, however, we have, as shown in the discussion herein, been much more concerned with the action of defendant's employees, and with the question of their negligence, than we have in the conduct of the plaintiff. Admitting that the plaintiff was negligent, still he is, as stated above, entitled to recover in this action.”

Because contributory negligence was not an issue in the Paulsen Case, the Supreme Court held that the instruction quoted was harmless error. In the case at bar, contributory negligence was a vital issue, and we believe that, because it was, the case is such as to require “a reversal of the judgment.”

The appeal from the order herein denying defendant's motion for an instructed verdict is dismissed, there being no appeal from such order, and the order denying the motion for judgment notwithstanding the verdict is affirmed. The judgment is reversed and the cause remanded for a new trial.

ROTH, Justice pro tem.

We concur: YORK, Acting P. J.; DORAN, J.

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