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


Civ. 13056.

Decided: August 12, 1941

G. Revelle Harrison and Albert E. Wheatcroft, both of Los Angeles, for appellant. Sidney A. Moss, of Los Angeles, for respondent.

Plaintiff commenced this action to recover damages for injuries alleged to have been suffered when she struck her head against a board while ascending a stairway maintained by defendant. A jury returned a verdict in favor of plaintiff in the sum of $1,500 but the trial court granted a motion for a judgment notwithstanding the verdict and plaintiff has appealed from the judgment thereupon entered.

Plaintiff's injuries were received on May 2, 1939, when she was ascending the stairs to purchase a meal at a restaurant conducted by defendant on the balcony of the Grand Central Market in Los Angeles. We take from plaintiff's brief the description of the stairway, which was the only means of entrance for the patrons of the restaurant: It consisted of 14 steps approximately 7 1/4 inches high and 10 1/2 inches wide. The width of the stairway or stairwell was 44 inches. It commenced at the floor of the Grand Central Public Market and extended up through the ceiling underneath the balcony and stopped at the floor level of said balcony. On each side of the lower half of the stairway there was a wall rail approximately 30 inches above the steps. Between each of said wall rails and the ceiling beneath the balcony there was an open space. The ceiling does not extend over the stairwell except at the bottom of the stairway, but it extends over the wall rails to a point on line with the inside of said wall rails or to the edge of the stairwell. The distance from the stairs to the ceiling is 7 feet at the bottom of the stairs and gradually lessens going up the stairs until it is 4 feet 2 3/8 inches at the sixth stair. The upper half of the stairway is bordered by solid walls on each side, from which hand rails project into the stairwell. Both the wall rail and the hand rail are located 30 inches above the level of each step. Adjoining the lower part of the stairway on one side is a meat market and on the other side a bakery. In using the lower half of the stairway, due to the open space on each side thereof, one could look out over said meat market or the bakery as well as over a great portion of the market in three directions.

Plaintiff testified that at about noon on the day in question she, accompanied by her friend, started up the stairway. After taking a couple of steps upward her companion stepped to the left and ahead of plaintiff to permit several people who were coming down the stairs to pass them. When plaintiff had ascended about four or five steps from the bottom of the stairway she stepped towards her left to permit people who were coming down to pass and at the same time stepped up and struck her head on a board at the bottom of the balcony.

The trial court is not authorized to weigh the evidence in passing upon a motion for a judgment non obstante veredicto but if there is any substantial evidence in the record to support the verdict the motion must be denied. Card v. Boms, 210 Cal. 200, 291 P. 190. In claiming that there is no substantial evidence to support the verdict defendant contends that the record is devoid of evidence that it failed to fully discharge its duty of using ordinary care to maintain the premises in a safe condition for the patrons of the restaurant; and that in any event plaintiff was guilty of contributory negligence as a matter of law in that she could not have been injured if she had not “protruded” her head beyond the space occupied by the stairwell and proceeded upward in that position without looking. We are satisfied, however, that the judgment must be affirmed regardless of the conclusions to be reached on these two contentions.

Plaintiff stated that she had made frequent use of the stairway. She testified: “I have been up many times when every stool was taken during the lunch hour at one time. * * * I had observed this balcony on other occasions during the 15 years that I had been going up and down these stairs and the condition was just the same as far as I could tell during those years as it was when I noticed it a couple of days after the accident”. Defendant had no information that any injury to any person had occurred before the date of the accident in question. The conclusion is irresistible that plaintiff was familiar with the premises and that she must have known that they were dangerous if indeed it is to be held that the premises were in fact dangerous. Defendant as lessee of the premises, although not an insurer of the safety of its patrons, was in duty bound to use reasonable care to keep the premises in a safe condition and to give warning of latent or concealed perils, but defendant is not liable for an injury to an invitee resulting from a danger which was obvious or which should have been observed in the exercise of reasonable care by the invitee. Blodgett v. B. H. Dyas Co., 4 Cal.2d 511, 50 P.2d 801. There was no latent or hidden defect in the premises in question. That the lower part of the stairwell was open on both sides was obvious to the patrons of the cafe. From her frequent use of the premises plaintiff had knowledge of the existing conditions. Since in spite of this knowledge she elected to ascend the stairs to purchase her lunch, she cannot hold defendant liable for injuries received because of the condition of the stairway of which she was informed.

The judgment is affirmed.

WOOD, Justice.

We concur: MOORE, P. J.; McCOMB, J.