NEIL v. BANK OF AMERICA NAT TRUST SAVINGS ASS

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

NEIL v. BANK OF AMERICA NAT. TRUST & SAVINGS ASS'N et al.

Civ. 11958

Decided: July 08, 1940

Sidney A. Moss, of Los Angeles, for appellant. Henderson & Churchill, of Santa Paula, and Roland Thompson and James L. Davis, both of Santa Ana, for respondent.

This is an appeal from a judgment entered pursuant to the verdict of a jury awarding respondent damages in the sum of $3,000 for injuries sustained when she fell on the floor of appellant's banking room at Camarillo, California, and also an appeal from the order denying appellant's “motion for judgment notwithstanding the verdict or in the alternative for a new trial”.

It is revealed by the record that on December 1, 1937, respondent, an employee of the Camarillo State Hospital, left that institution shortly before two o'clock in the afternoon during a drizzling rain and was transported by Bert O. Brown in his automobile to appellant's bank where she was accustomed to do business, in order that she might cash a check.

She entered the bank and had advanced “three to five steps”, about “four feet” away from the front door, when she slipped and fell, sustaining a Colles' fracture of the left arm just above the wrist. Respondent testified that she did not notice the condition of the floor when she went into the bank, but after she fell she observed that it was “wet and muddy”, and that the heel of her shoe had left a skid mark six to eight inches long; that she examined her shoes and found mud on the upper outside portion of her right shoe; that at the point where she fell it “looked more as if it was a number of foot prints like a number of people had been in and tracked over this” for a space of about two feet; that “it was pretty wet, and made a kind of solid kind of a film”; that she finished her business with the bank and sought medical attention. The physician who attended her testified that the said fracture was reduced under anesthetic and the arm kept in a plaster cast for four weeks, after which it was put in splints, followed by treatments. Respondent was unable to return to her work for a period of three months.

The local manager of the bank, Harold G. Moody, testified when called by respondent under section 2055 of the Code of Civil Procedure, that the dark green composition linoleum had been on the floor of the banking room since 1934; that in order to keep it clean the janitor used each day a sweeping compound composed of an oily substance and sawdust; that on rainy days a small amount of water would be tracked in; and he had observed at those times “more or less of a footprint of mud” on the linoleum; that the said linoleum had been waxed from time to time, although in relation to the day of the accident, he did not recall when it had last been done. He also stated that his location in the banking room commanded a full view of the front entrance and of the floor in general, and that the front door, which was approximately five feet in width, remained open to the weather on the day in question. When called by appellant, this witness qualified said statements by testifying that he had never seen the floor cleaned during the year 1937, and did not know, and in fact only presumed, that the sweeping compound contained an oily substance; that he opened the bank at 9:30 o'clock in the morning on December 1, 1937, at which time there was neither mud nor footprints, or other foreign substance on the floor; that in the half hour previous to the accident probably but six persons had entered the bank; that Mr. Sawtelle entered only a few moments before respondent, and although he (Moody) had occasion to look toward the door during a period of fifteen minutes prior to Mr. Sawtelle's arrival at the bank, he saw no footprints, mud or other foreign substance on the floor.

The witness Sawtelle testified that he was in the bank at the time of the accident and was standing talking to Mr. Moody; that he helped to pick respondent from the floor after she fell; that although it had rained earlier in the day, it was not raining at that time, and he noticed that respondent had mud on her shoes; that there was mud on the floor where she was standing and “where she had tracked it”; that the rest of the floor was clean; that when he went into the bank “the floor was clean. There weren't any mud prints on the floor, and when I went to the window I didn't notice whether there were any mud prints at the window. But when I picked her up I noticed there was mud on her shoes and mud where she was standing on the floor.”

The witness Brown testified that he called with his automobile at the state hospital on December 1, 1937; that it was raining, and respondent walked on a rough brick walk from the nurses' quarters to his car, and that he drove her to the bank, where she left his car and walked on a cement walk to the door of the bank.

Over the objection of appellant, on the ground of remoteness and that it did not tend to prove or disprove any of the issues of the case, the witness Salsman was permitted to testify that in January, 1937 (eleven months prior to the time the accident herein occurred) he entered the bank early in the morning after it had rained the night before and slipped on the floor which “was tracked all over with foot prints from the wetness of the weather at that time”.

Appellant contends that the judgment is not supported by the evidence, and assigns as error the admission in evidence of a prior accident; the denial of its motions for directed verdict and for judgment notwithstanding the verdict or to alternatively move for a new trial.

In connection with its contention with respect to the insufficiency of the evidence, it urges that in order for respondent to recover damages for the alleged negligence of the bank, she must show (1) that the bank had actual or constructive notice of the presence of wet and muddy footprints on the floor of its premises; and (2) “the length of time during which the substance which caused the slipping was on the floor”.

This latter contention of appellant must be sustained, because of the complete lack of any evidence that the bank had notice of the presence of such footprints on the floor of its banking room. For all that appears, respondent tracked into the banking room the mud and water which caused her to slip and fall upon the linoleum.

In the case of Crawford v. Pacific States S. & L. Co., 22 Cal.App.2d 448, 449, 71 P.2d 333, it was stated, quoting from Touhy v. Owl Drug Co., 6 Cal.App.2d 64, 66, 44 P.2d 405:

“ ‘The proprietor of buildings who directly or by implication invites others to go therein owes to such persons who thus enter a duty to have his premises in a reasonably safe condition, and to give warning of latent or concealed perils. He is not an insurer of such persons, nor does the mere occurrence of injury on such premises to such invitee create any presumption of negligence on the part of the proprietor. His responsibility is not absolute; he is only required to use ordinary care for the safety of the persons he invites to come upon the premises. The true ground of liability rests on the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to invitees, over that of the invitee. Where such danger is obvious, or is as well known to the injured invitee as to the owner or occupant, there is no liability.’ Citing numerous cases.

“The general rule is stated in 45 Corpus Juris, 837, § 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.’ Citing the California case, Shanley v. American Olive Co., 185 Cal. 552, 197 P. 793.”

In the circumstances presented by the facts herein, the conclusion is irresistible that the danger incident to stepping upon linoleum on a rainy day, either with wet and muddy shoes or after the floor had been tracked by previous customers with wet and muddy shoes, was as obvious to respondent as it was to the manager of the bank.

“While it is true that evidence as to previous accidents is admissible upon the general proposition that testimony of previous accidents tends to show the dangerous character of the place, tends to disclose the cause of the later accident, and bring home to the person maintaining the place where the injury occurred knowledge of the dangerous condition of such place, yet the inquiry as to previous accidents must refer to accidents similar to the one in question, occurring under substantially the same circumstances that surrounded the subsequent accident.” (Citing cases.) Thompson v. Buffums', Inc., 17 Cal.App.2d 401, 404, 62 P.2d 171, 172.

Viewed in the light of the rule enunciated by the cited case, it was error to allow Mr. Salsman to testify that he had slipped on the floor in question some eleven months prior to the instant accident, in the absence of a showing that it occurred under substantially the same circumstances.

The judgment and order appealed from are, and each of them is, reversed.

YORK, Presiding Justice.

We concur: DORAN, J.; WHITE, J.