LENAHAN v. POOLE

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District Court of Appeal, Third District, California.

LENAHAN v. POOLE.

Civ. 7868.

Decided: May 31, 1951

Hewitt & McBride, Yuba City, for appellant. Ralph W. Rutledge and Richard E. Patton, Colusa, Robert E. Hatch, San Francisco, for respondent.

This is an appeal from a judgment rendered by the court sitting without a jury, awarding damages to plaintiff who was injured as she was about to enter defendant's store when she was struck on the head by a board which constituted a part of an awning over the sidewalk in front of the store. The awning had been installed by defendant and extended across the front of the store and an adjoining barber shop. It consisted of canvas attached to a roller next to the building and to a board which constituted its outer edge. It was raised and lowered by means of a crank inserted in a gear box. The crank was kept in defendant's store, but a similar one was also kept in the barber shop. Employees of the barber shop operated the awning occasionally when they desired to shut out sunlight from one of their chairs, and it was being lowered by one of the barber shop operators when the board was torn loose from the canvas and fell to the street.

Plaintiff relied upon the doctrine of res ipsa loquitur, to wit, that the awning belonged to defendant, and that such accidents normally do not happen in the absence of negligence on the part of the one owning the object which causes the damage. Plaintiff introduced evidence showing that she was injured when struck by the board which fell from the awning, that the awning was owned by defendant, and that defendant was responsible for the management and maintenance of same. Defendant sought to avoid liability by showing, as a defense, that the awning was being operated at the time of the accident by an employee of the barber shop who was without authority to operate it, and that she was not responsible for his actions; and she argues that the doctrine of res ipsa loquitur does not apply because it was not shown by plaintiff that defendant had exclusive control of the awning. The trial court found that defendant Poole ‘owned, maintained, operated and controlled’ the awning.

That others than defendant did operate the awning, though without defendant's consent, does not necessarily prevent the application of the rule of res ipsa loquitur. In Ybarra v. Spangard, 25 Cal.2d 486, at page 493, 154 P.2d 687, at page 691, 162 A.L.R. 1258, the court said that the doctrine of res ipsa loquitur has three conditions: that the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; that it must be caused by an agency or instrumentality within the exclusive control of the defendant; and it must not have been due to any voluntary action or contribution on the part of plaintiff; but it also said: ‘An examination of the recent cases, particularly in this state, discloses that the test of actual exclusive control of an instrumentality has not been strictly followed, but exceptions have been recognized where the purpose of the doctrine of res ipsa loquitur would otherwise be defeated. Thus, the test has become one of right of control rather than actual control. See Metz v. Southern Pac. Co., 51 Cal.App.2d 260, 268, 124 P.2d 670.’ (Italics added.) Exceptions to the rule that exclusive control of the agency causing injury renders the doctrine inapplicable are then cited. Here defendant Poole claimed to have the exclusive right of control of the awning.

In Rafter v. Dubrock's Riding Academy, 75 Cal.App.2d 621, 626, 171 P.2d 459, and Doke v. Pacific Crane and Rigging, Inc., 80 Cal.App.2d 601, 606, 182 P.2d 284, the Ybarra case is cited and followed. Hearing in the Supreme Court was denied in each case.

The following are some falling awning cases from other jurisdictions. In McHarge v. M. M. Newcomer & Co., 117 Tenn. 595, 100 S.W. 700, 703, 9 L.R.A., N.S., 298, 301, the court said: ‘It was their duty to exercise a high degree of care and diligence in the construction, maintenance, inspection, and repair of the awning, so as to prevent it from obstructing the street, or endangering those using it; and their failure to do so, or to take proper precautions to protect the public at all times from injury in any way growing out of its maintenance or repair, renders them liable for the damages suffered.’ In Waller v. Ross, 100 Minn. 7, 110 N.W. 252, 253, 12 L.R.A., N.S., 721, 726, 117 Am.St.Rep. 661, 10 Ann.Cas. 715, the court held that the doctrine of res ipsa loquitur applied where an awning fell and struck a person walking on the sidewalk. It quoted from an English case to the effect that “where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen, if those who have the management used proper care, it affords reasonable evidence, in the absence of explanation of the defendant, that the accident arose from the want of care.” To the same effect is Potter v. Rorabaugh-Wiley Dry Goods Co., 83 Kan. 712, 112 P. 613, 614, 32 L.R.A., N.S., 45, in which the court said: ‘Those who place or project objects over the street upon which persons are passing and repassing take upon themselves the duty of making them secure, and, if the object falls and injures a pedestrian, the maxim of res ipsa loquitur applies, and the burden rests upon them to show that the fall and injury did not occur through their negligence.’ Also see Schnur v. State, Ct.Cl., 35 N.Y.S.2d 499; Leighton v. Dean, 117 Me. 40, 102 A. 565, 566, L.R.A.1918B, 922; McCrorey v. Thomas, 109 Va. 373, 63 S.E. 1011, 1013–1014.

Appellant next argues that the judgment must be reversed because evidence produced by her dispelled the inference arising from application of the doctrine of res ipsa loquitur. However, whether defendant's evidence had that effect was a question of fact for the trial court. In Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 461, 150 P.2d 436, 440, the court said: ‘It is well settled, however, that when a defendant produces evidence to rebut the inference of negligence which arises upon application of the doctrine of res ipsa loquitur, it is ordinarily a question of fact for the jury to determine whether the inference has been dispelled. Druzanich v. Criley, 19 Cal.2d 439, 444, 122 P.2d 53; Michener v. Hutton, 203 Cal. 604, 610, 265 P. 238, 59 A.L.R. 480.’ In the Michener case cited in the Escola case we find, at page 610 of 203 Cal., at page 240 of 265 P.: ‘It is apparent from these latter authorities that it is for the jury, or the court when sitting without a jury, to determine from all the evidence in the case whether the defendant has successfully met and rebutted the prima facie case made out by the plaintiff in an action wherein the mere proof of the happening of the accident and the circumstances surrounding it give rise to an inference of negligence. That the inference of negligence created by the application of the doctrine of res ipsa loquitur constitutes evidence which may not be disregarded by the jury, but is to be weighed and considered as against the evidence adduced by the defendant in rebuttal thereof, has been announced in numerous cases. [Citing many cases so holding.]’

Appellant urges, also, that the judgment is excessive and unsupported by the evidence. The evidence as to the extent of plaintiff's injuries and the probable duration of their injurious effects is conflicting. But there is sufficient to support the award made by the court and to justify its denial of a new trial. It is not so large as to indicate passion or prejudice, and in view of the reduced purchasing power of the dollar it is not unreasonable.

The judgment is affirmed.

ADAMS, Presiding Justice.

DEIRUP, Justice pro tem, and VAN DYKE, J., concur.

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