HAMILTON v. PACIFIC ELECTRIC RY CO

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

HAMILTON v. PACIFIC ELECTRIC RY. CO.†

Civ. 11789.

Decided: June 16, 1938

Frank Karr, E. E. Morris, C. W. Cornell, and O. O. Collins, all of Los Angeles, for appellant. Leo V. Youngworth and J. Harold Decker, by Leo V. Youngworth, both of Los Angeles, for respondent.

This is an appeal from a judgment in favor of the plaintiff in an action for personal injuries caused by plaintiff's slipping and falling when she stepped in a small pool of oil on the floor of defendant's waiting room in the station at Los Angeles. The contention of the defendant is that there is not any evidence to sustain the finding that the defendant was negligent for the reason that there was no evidence that the defendant had knowledge of the condition or that the condition complained of had existed for so long a time that defendant was charged with notice of its existence.

The doctrine of res ipsa loquitur does not apply. The plaintiff has the burden not only to show that the oil was on the floor, but also that the defendant had actual knowledge of its existence or that it had been there for so long a time that the defendant is charged with notice of its existence. Crawford v. Pacific States, etc., Co., Cal.App., 71 P.2d 333; Gold v. Arizona Realty, etc., Co., 12 Cal.App.2d 676, 55 P.2d 1254; Touhy v. Owl Drug Co., 6 Cal.App.2d 64, 44 P.2d 405.

This court, in granting a reversal in the case of Gold v. Arizona Realty, etc. Co., supra, said: “The manager of the apartment house testified that the janitors frequently washed the stairway with soap and water. The janitors were not called as witnesses. The record fails to disclose sufficient evidence as a matter of law to charge defendant with responsibility for plaintiff's accident. The doctrine of res ipsa loquitur is not applicable to the facts shown in evidence. The mere fact that plaintiff tripped and fell down stairs does not of itself create a situation in which the doctrine can be invoked. Finch v. Willmott, 107 Cal.App. 662, 290 P. 660. It was not shown that the ‘substance’ which caused plaintiff's fall had been on the stairway any length of time or that it had been left there by an agent of defendant.”

In the case of Crawford v. Pacific States, etc., Co., supra (page 334), the court quoted with approval the general rule from 45 Corpus Juris 837, section 245: “In order to impose liability for injury to an invitee by reason of the dangerous condition of the premises the condition must have been known to the owner or occupant or have existed for such time that it was the duty of the owner or occupant to know of it.”

With the law in mind we turn to the evidence. The only evidence regarding the oil is from the plaintiff. The plaintiff testified in substance that on the evening of the day of the accident she got off of one street car and walked into the waiting room to wait for another car to take her home; that at the entrance to the waiting room there were two swinging doors and that she went through the west swinging door and seated herself on a bench in the waiting room for twenty or thirty minutes, and during that time she did not observe any person go in or out of said swinging doors; that when her car arrived she started out of the waiting room through the east swinging door and slipped upon the oil, which caused her to be thrown to the floor and injured. The pool of oil was about fifteen inches wide and was located one foot inside the swinging doors. She testified she did not know how long the oil had been there or who placed it there, and she was the only witness.

There is no other evidence that the defendant had actual knowledge of the oil's existence, or that the oil had been there for so long a time that the defendant was charged with notice of its existence. In our view there is not any substantial evidence to prove either of said issues.

Judgment reversed.

I dissent.

It was the duty of the defendant in maintaining a waiting room to exercise reasonable care to be informed of its condition while it was in use by the public. Defendant may be held liable for such defects as a reasonable inspection would have disclosed. Newell v. K. & D. Jewelry Co., 119 Conn. 332, 176 A. 405. It was the function of the trial court to draw inferences from the evidence and to determine if defendant made reasonable inspection. Plaintiff testified that she sat in the waiting room from twenty to thirty minutes and during that time she did not observe anyone enter or leave through the doors. The trial court doubtless concluded that the oil had remained in the doorway long enough to charge defendant with constructive notice of its presence and that defendant had not made reasonable inspection. In my opinion there is substantial evidence to sustain the findings of the trial court. Williamson v. Hardy, 47 Cal.App. 377, 190 P. 646; McClurken v. Ralph's Grocery Co., 130 Cal.App. 529, 20 P.2d 66; Sharpless v. Pantages, 178 Cal. 122, 172 P. 384.

CRAIL, Presiding Justice.

I concur: McCOMB, J.