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District Court of Appeal, Second District, Division 3, California.


Civ. 14051.

Decided: March 30, 1944

Frank W. Woodhead, of Los Angeles, for appellants. Irving E. Read, of Los Angeles, for respondent.

This is an appeal from a judgment entered in favor of the plaintiff, Lettie Donahoo, against Kress House Moving Corporation and its vice–president, Edwin O. Egnew, in an action tried before a court without a jury.

The locale of the accident resulting in the injuries for which judgment was awarded was the rear of a lot on the south side of Hollywood Boulevard a short distance east of Gower Street in the City of Los Angeles. This lot belonged to a man named Mark Hansen and was of sufficient depth to warrant the moving of two houses located thereon to the rear of the premises, thereby making available as a used car lot the front of the premises. Hansen, on February 1, 1941, entered into a written contract with defendant corporation to move the buildings, which were respectively occupied by his tenants, Dr. Taylor and Miss Juanita Donahoo, an artist, whose 77 year old mother, the respondent here, lived with her and kept house for her. The Donahoo house, smaller than the Taylor house, was moved first and placed upon a concrete foundation which had been prepared for it at the extreme rear of the property. The contract between the owner and the Kress House Moving Corporation contained as one of its provisions, the following: “(d) Uninterrupted Possession: To furnish and provide to the contractor at all reasonable times during the progress of the work whenever required in the performance of this contract by the contractor, an exclusive and uninterrupted possession of all the building or buildings and properties herein referred to, and to hold the contractor free and harmless at all times from any interference with such possession and occupation, as may be necessary to carry out the obligations of the contractor herein, and to hold the contractor free and harmless from all claims of third parties which may arise by reason of the doing by the contractor in a proper manner of the work herein agreed by him to be performed.” The occupants of the Donahoo house were permitted by the defendant corporation to continue their occupancy of the house during the moving operations.

According to the defendant Egnew, who was in active charge of the work, his organization started moving the Taylor house on the 11th day of February, 1941, the Donahoo house having been lowered in the morning of that day upon its permanent foundation. Miss Donahoo testified that before the Taylor house was moved she saw the employees of the defendant corporation dig a ditch “near the northwest corner of our house, as it is now located.” This ditch she described as being approximately 7 or 8 feet long and between 3 and 4 feet deep, located in an area immediately adjacent to the northwest corner of the Donahoo house. The court found that “this hole ran from east to west, and was approximately a foot north of the front of the Donahoo house.” Miss Donahoo also testified that the workmen put some beams in the hole and a metal upright or stake to which a chain and cable were attached. Other testimony showed that the hole, timbers, and metal stake formed what was known as an “anchor” in house moving operations and the timbers, being buried in the ground, were known as “deadmen.” A new foundation was also constructed for the Taylor house but the work of placing it permanently upon that foundation was interrupted by winter rains and for approximately a fortnight after February 18, 1941 it rested on heavy timbers immediately above the concrete foundation.

As the work progressed after February 1st, the front of the premises became littered with all kinds of equipment and machinery used in house moving and in concrete construction. Because of the great inconvenience involved in making her way out to Hollywood Boulevard by going to the north, Miss Donahoo resorted to a short cut by which she obtained an exit to a paved driveway a few feet to the southwest of the northwest corner of her house. At that point two boards had been removed from a fence abutting on the paved driveway by which easy access was had to Gower Street. Because of the muddy condition of the lot, the trip from the front of the Donahoo house to the paved driveway was made over small boards approximately one and a half feet long by six inches wide, laid end to end and bordering at one point upon the hole, above described, which, according to the findings of the court, the defendants “neglected and failed to cover up or place a guard over or around the hole * * * so that it would be reasonably safe for plaintiff and her daughter to either walk over or around the same and out to the passageway in question.” The evidence does not disclose who laid the small boards in position but it appears clearly that Juanita Donahoo and a Miss Young, who was a close friend of her mother, frequently used the path formed by these boards. Mrs. Donahoo, however, had no occasion to use the path or to go to the driveway since she remained inside the Donahoo house during all the moving operations from February 1st until February 22nd, the night when she suffered her injuries, with the exception of a single instance when she “went out to get the mail, toward Hollywood.” On the evening of February 22, she was expecting Miss Young to call upon her and undertook to light the way to and from the driveway by putting on the lights in two westerly bedrooms and the front porch. There were no back stairs available, the defendants having removed them when moving the house and not having replaced them. Mrs. Donahoo decided that she would make her way to the fence corner, greet her friend and return with her to the house. She had no knowledge whatever of the hole having been dug but, undoubtedly, was familiar with the fact that her daughter and Miss Young had made use of the short cut above described. On the night in question she went from the house to the paved driveway at about 7 o'clock and, meeting Miss Young at that point, turned about and preceded her toward the Donahoo house. She described her trip going from the house, as follows: “I walked––stepping on these small boards, I came to a white board, a little board painted white, and I stepped on that, and then up on a beam, and then over onto another beam, and then to a sort of a cement coating, and then down on the cement––on cement paving.” On the trip back, toward the house, I stepped on the first beam with my right foot, after passing over the coping, and leaving the paving, I stepped on the beam––the first beam, with my right foot, and then over on the left beam with my left, and then down on this little white board with my right foot, which slipped into the hole or trench or whatever it was. I didn't see it before I slipped into it, or I never saw it afterwards; I never saw the hole.” She also testified that the force of the fall “sent my body over the beam south, and the beam hit my knee, the sharp edge of the beam hit my knee, and I couldn't move.” While the night was described as “dark” by certain of the witnesses, Mrs. Donahoo testified that she saw the beams and the little white board, saying, “I stepped down on that little white board, because I could see that plainly.” Miss Young also testified that while she could not remember about the “moon” she could see very well. It was quite possible that the hole was in a shadow.

As a result of this accident Mrs. Donahoo was confined to her bed for a period of 8 or 9 weeks with her leg in a cast, then got about by means of crutches and a cane for a period of approximately a year after the date of her fall.

Appellants make no complaint with reference to the amount of the award made by the court, but contend that the evidence is insufficient as a matter of law to support the judgment; that it does not justify the findings of fact and conclusions of law made by the court, and that the plaintiff was guilty of contributory negligence as a matter of law. It is also claimed that the negligence, if any, of the defendants was not the proximate cause of the injuries sustained by the plaintiff.

As to the findings it may be said that many of the details covered in the foregoing recital appeared therein, and to us they furnish adequate support for the conclusions reached by the court, as follows: (1) That the defendants had uninterrupted possession of the property at the time of the accident and that the plaintiff was, both prior to and at the time of her accident, an invitee of the defendants. (2) That it was the duty of the defendants to provide a reasonably safe passageway on the said property for the plaintiff to walk upon and use as a means of ingress and egress to and from the house; that it was also the duty of the defendants to exercise reasonable care in guarding any openings or excavations it made on said property so that plaintiff and other invitees would not, in the exercise of reasonable care, fall into the same. (3) That the defendants dug the hole in question and failed to guard the same or provide a reasonably safe passage over or around the same and that by reason thereof were careless and negligent; that their carelessness and negligence was the sole proximate cause of the plaintiff's accident and injuries. (4) That the plaintiff was in the exercise of reasonable care and caution immediately preceding and at the time of the accident and there was no negligence on her part proximately contributing thereto. (5) That the plaintiff was entitled to recover the sum of $2496.50 from the defendants Kress House Moving Corporation, a corporation, and Edwin O. Egnew.

With the exception of the amount estimated by the court as a just award for the injuries suffered by Mrs. Donahoo, the appellant contends that all the foregoing conclusions are unwarranted under the testimony submitted. We, therefore, consider them each in order.

Miss Donahoo was the tenant of Hansen, the owner of the property, before and during all the moving operations. As such, she was an invitee and so was her mother, a member of her household and acting as her housekeeper. As stated in 36 C.J., p. 217 [Landlord & Tenant], the rule reads: “Where the landlord undertakes to make repairs upon the demised premises, he is liable for injuries resulting from the negligence of himself or his servants in making such repairs. The liability of a landlord in such cases is not limited to the tenant personally, but includes all persons who, within the contemplation of the parties, were to use the premises under the hiring.” See also 32 Am.Jur., Sec. 665, p. 529 [Landlord & Tenant], which states: “* * * It is the well–settled general rule that the duties and liabilities of a landlord to persons on the leased premises by the consent of the tenant are the same as those owed to the tenant himself. For this purpose they stand in his shoes. This rule applies to the tenant's wife or child.” Since the defendants permitted Miss and Mrs. Donahoo to remain on the premises their status did not change; they remained invitees. Appellants argue that since Miss Donahoo was negotiating during the month of February for a reduction of rent because of the change in the condition of the premises which she occupied, she became a tenant at sufferance merely because her rent was not paid promptly on February 1st, the day when it was due. We do not think this reasoning is sound for Miss Donahoo stayed on with the consent of her landlord and, since she rented on a month to month basis, her holding over did not change her status to that of a tenant at sufferance. “In the case of a prior tenancy from month to month, a tenant, on the election of the landlord so to treat him, becomes or remains a tenant from month to month.” 32 Am.Jur., Sec. 941, p. 793; see Sec. 1946, Civ.Code. Under this rule Miss Donahoo was still owed the same degree of care that was due her before the negotiation for the reduced rent began. The same, of course, is true of her mother. When the defendants permitted these two women to remain upon the premises, they accepted them as invitees to whom they owed ordinary and reasonable care since they continued as tenants, and the defendants, by the terms of the moving contract with Hansen, were given complete possession and control of the buildings and the property involved in the moving operations.

Appellants contend that the court erred in concluding that it was the duty of the defendants to provide a reasonably safe passageway on the Hansen lot for the plaintiff to use in going to and coming from her house, but under the circumstances of this case it clearly appears that some provision of this sort should have been made. The defendant Egnew testified that, while the moving operations were going on, the area between the Donahoo house and Hollywood Boulevard was “about like a pig pen in winter.” Notwithstanding that, and with full knowledge that women were entering and leaving the house, neither he nor any–one by his order, according to his testimony, laid any boards or planks over the short distance, approximately 15 or 20 feet, from the front of the Donahoo house to the paved driveway leading to Gower Street, while the work was going on in the front part of the Hansen lot; nor did they provide means of entry or exit elsewhere on the premises. A witness, George Gray, describing the condition north of the Donahoo house, stated “it was strewn with brush and with timbers, with sand, with concrete, concrete mixers, and everything that a person would use in moving and building foundations;” also that when the Donahoo house was in its old location a cement sidewalk led from the front of their house around on the east side of the Taylor house, to the front of the Taylor house, and on to the walk, but that prior to February 22nd, 1941, “The biggest part of it had been broken up by the trucks, and then moved out completely.” Plaintiff's Exhibit 4 vividly depicts the condition of the area between the Donahoo house and Hollywood Boulevard. We find the appellants, in their opening brief, mentioning that “there were concrete mixers, sand, cement, concrete forms and other paraphernalia connected with construction operations upon the premises. The cement contractor had dug trenches for the purpose of laying the foundations for both houses; the plumbing contractor had laid pipes on the ground in the vicinity of both houses; trees and shrubbery were uprooted all over the premises and timbers which were essential to the house moving operations and the construction work necessarily were lying on the ground surrounding both houses.” Instead of providing a reasonably safe means of ingress and egress the defendants, according to the finding of the court, dug the hole, which we have heretofore described, at the northwest corner of the Donahoo house and immediately adjacent to it. Having complete control of the property, they stood in the same position as a landlord and, in our opinion, violated the rule stated in 15 Cal.Jur., p. 741: “Where a landlord retains or has control of a portion of the leased premises, the responsibility rests with him to see that no injury results to those having rights there because of the way in which that portion is occupied or used.” See Davis v. Pacific Power Co., 1895, 107 Cal. 563, 40 P. 950, 48 Am.St.Rep. 156; Mendelsohn v. Van Herick, 1933, 133 Cal.App. 612, page 615, 24 P.2d 878, at page 879, where the court said: “It is true, as defendant contends, that ‘an invitation to use property on which work is being done extends to the property in its then condition, and invitees using the property assume the risk of such condition’ (45 C.J., p. 837); but obviously such rule does not do away with the legal duty imposed upon the owner to use ordinary care to keep the premises in a reasonably safe condition for those he has invited to come upon them.” In speaking of liability for injuries, we find the following in Restatement, Torts, Vol. II, Sec. 384: “Persons Creating Artificial Conditions on Land on Behalf of Possessor For Bodily Harm Caused Thereby While The Work Remains In Their Charge. One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to the same liability, and enjoys the same immunity from liability, as though he were the possessor of the land, for bodily harm caused to others within and without the land, while the work is in his charge, by the dangerous character of the structure or other condition.” The “other condition” which proved dangerous to Mrs. Donahoo consisted of the open hole dug by the defendants, left unguarded and, according to Miss Donahoo, never completely filled. Under the circumstances of the case this condition might well be called a trap created by the negligence of the defendants. It is true that Miss Donahoo testified that the hole which she had seen dug “apparently had been filled in and sunk some more because it was about 12 or 15 inches deep when I saw it––when I saw her in it––I saw my mother in it.” She also said at another point in her testimony that “it had been filled in considerably.” The first of these statements by Miss Donahoo is not conclusive; the second, while positive in its nature, implies that the hole had not been completely filled. Other facts hereinafter related would indicate that the actual filling in with dirt, if any, was very slight indeed, and there is nothing to indicate that any fill was made by the defendants or their agents.

The court found, as the basis of one of its conclusions, that the defendants prior to February 22nd disconnected their chain, cable and pulley from the timbers, heretofore referred to, and instead of removing the timbers left them in the hole. This finding is interesting in view of the fact that defendant Egnew, his foreman on the job, Charles Evans, and his workman, Clarence Simmons, all testified that according to their knowledge there never was any hole dug at the place where the accident occurred. They testified that two holes, and only two, were dug by Simmons on the Hansen property for the purpose of “anchors” and these, they said, were located at points immediately south of the Taylor house, practically on a line with the east and west sides of that building, and well out of the way of a person traveling over the route pursued by Mrs. Donahoo on the night of her accident. Being cross–examined, Simmons testified as follows:

“Q. I believe you testified, Mr. Simmons, that you took some deadmen out of the hole that you dug after your work had been completed, in so far as the moving of the Taylor house is concerned? A. Yes, sir * * *. They were taken out the day we completed pulling the house * * *.

“Q. After you took them out, what did you do * * * with reference to the hole? A. I filled the hole * * * I filled it full, and possibly a little more than full * * *.

“Q. It was tamped down? A. Part of the way.”

While neither of the defendants nor any of their employees admitted knowing of the existence of the hole at the corner of the Donahoo house, they argue that “when the defendants left the premises, the hole which had been used for the ‘dead man’ had been filled to the top with dirt * * *. The evidence is undisputed that the defendants were not on the premises between the afternoon of the 19th and several days following the plaintiff's accident. During this period heavy rains fell. It is apparent that the hole must undoubtedly have been filled up prior to the time the defendants left the premises on the 19th for the reason that plaintiff's own witnesses testified that when the hole was dug it was approximately three to four feet in depth * * *. Miss Young, the plaintiff herself and the plaintiff's daughter, all testified that at the time of the accident the hole was only twelve to fifteen inches in depth.” We have italicized portions of this argument for convenience in referring to them hereinafter.

After the plaintiff's testimony was submitted to the court, a motion for a nonsuit was made and denied. The defendants then proceeded to put on their testimony and early on Friday afternoon, October 2, 1942, their counsel rested. Immediately thereafter counsel for the respondent stated to the court: “This noon, just before I came back to court, I received a telephone call from Mrs. Donahoo, the daughter–in–law of the plaintiff in this case, who is visiting at the Donahoo home with her husband and daughter, and she advised me that her husband went out this morning and started digging at a place on the property located at ‘JD–4’ [the point on the map, Plaintiff's Exhibit 1, where Juanita Donahoo located the hole which defendants dug], and that he uncovered some timbers there. I requested her to have him stop the work, and I now ask the Court to reopen the plaintiff's case, and to adjourn to the scene of the accident and permit the plaintiff to present further evidence on the ground, as to what is there.” Pending the decision on the motion to reopen and at the suggestion of the court, the opposing parties proceeded to the Donahoo premises to examine conditions there and under an order to report to the court on the following Monday morning. At that time the court granted leave to reopen the case and further testimony was introduced. Counsel for the appellants also offered a stipulation, which was accepted, as follows: “I offer to stipulate that on Friday, October 2, 1942, in the presence of Mr. Egnew, Mr. Evans, Mr. Simmons, myself, Mr. Read, Miss Donahoo, Mrs. Donahoo and Mr. Donahoo, the brother of Miss Donahoo and the son of Mrs. Donahoo, we were at the premises at 6048 1/2 Hollywood Boulevard, the Donahoo house, and on arrival there we found Mr. Donahoo, and we found a hole in the ground near the northwest corner of the Donahoo house. That hole went down to a timber that was flat on the ground when a certain picture was taken * * * which is marked Plaintiff's Exhibit No. 13, showing the hole in the condition it was when we all arrived at the scene. * * * That thereupon we commenced to dig, and dug up four timbers, etc.” These timbers it appears from the record had been placed in the hole as timbers for an “anchor” would be placed and after they were taken out, the hole measured 43 inches deep. It was stipulated that the top timber, as it lay in the ground, was 12 or 13 inches below the surface of the ground. The four timbers, laid broadside one upon the other with a few inches of dirt intervening between them, would measure 29 or 30 inches, leaving a space of only 13 or 14 inches to be filled. Since the depression into which Mrs. Donahoo fell was 12 to 15 inches deep, it is clear that any appreciable filling which was made in the trench was made by timbers found therein rather than by any dirt covering. It is quite possible that no dirt was thrown in the hole but that the rains washed a slight covering of dirt on top of the “deadmen.” Mr. Simmons' testimony, as we have seen, was to the effect that he dug all the holes on the Hansen property that were used for “anchors” and also that the “deadmen” which he had used in the holes which he had dug were taken out. Under these circumstances, we find no support for the argument previously italicized that “when the defendants left the premises, the hole which had been used for the ‘dead man’ had been filled to the top with dirt” and “[i]t is apparent that the hole must undoubtedly have been filled up prior to the time the defendants left the premises on the 19th.” On the testimony submitted the court was justified in finding that the defendants “instead of removing the timbers * * * left them in the * * * hole.”

Furthermore, the matters just recited furnished ample grounds for the court's conclusion that it was also the duty of the defendants “to exercise reasonable care in guarding any openings or excavations it made on said property so that plaintiff and other invitees would not in the exercise of reasonable care fall into the same.” In the case of Hall v. Barber Door Co., 1933, 218 Cal. 412, 419, 23 P.2d 279, 282, it is stated: “Upon both principle and authority, it is clear that an independent contractor, who by his own negligence creates dangerous conditions during the progress of the work, should be held responsible for an injury occasioned by those conditions to one rightfully on the premises, and should be held liable for damage directly attributable to the failure to perform this duty. [Citing cases.]” In that case, the plaintiff was the tenant of a building under construction and sought damages for personal injuries which he received when, in attempting to leave the premises, he raised a heavy door which had been installed by the defendant, an independent contractor, and which fell upon him. The work of installing the door had not been completed in that certain setscrews in the machinery had not been countersunk into the shaft but were simply screwed down against the shaft. Certain safety catches which would have held the door up even in the absence of counterweights had not yet been installed. A judgment of nonsuit, which was entered by the trial court, was reversed by the Supreme Court, and in the opinion the following language appears at page 419 of 218 Cal., at page 281 of 23 P.2d: “It cannot be doubted that an independent contractor is responsible to an occupant of a building rightfully on the premises at the request or consent of the owner for any wrongful acts that may be committed by himself or his employees while the stipulated work is in progress and resulting in injuries to such occupant. The ground upon which this liability is based is the implied duty which the law casts upon the independent contractor, as the person in charge and control of the work, to see that the rights of other persons, rightfully on the premises, are not injuriously affected by the performance of the work. [Citing cases.]” Quoting further from this case, we find a paragraph on page 420 of 218 Cal., at page 282 of 23 P.2d, which seems quite apropos in considering the facts in the instant case: “Defendant independent contractor contends that, as to it, plaintiff was a mere licensee. For reasons already stated, we do not think this is so, but, even if it were, the judgment of nonsuit would have to be reversed. As already pointed out, defendant installed the door and knew that the set–screws had not been countersunk. Under such circumstances, the jury could have found that defendant knew, or should have known, that persons rightfully on the premises were likely to use that door; that defendant knew or should have known that it would be dangerous to use the door under those circumstances. We think the jury could have inferred that, as left by defendant, there was an implied invitation to use the door. The jury could also have found that, as left by defendant, the door was a dangerous instrumentality within the meaning of that doctrine as recently enunciated by this court in Dahms v. General Elevator Co., supra [[[[214 Cal. 733, 7 P.2d 1013], and that, as constructed and left by defendant, it was in legal effect a trap of the existence of which it was defendant's duty to warn even licensees.”

In view of all the foregoing, it might well be argued that even if Mrs. Donahoo is considered a licensee, the appellants failed in the duty which they owed her.

Adverting to the argument by the appellants that any fill made at the points where anchors were installed on the Hansen property had sunk by reason of heavy rains and therefore the defendants should not be held liable, we cannot accept this as a sound principle. In the case of Ames v. Gannon, 1909, 77 N.J.L. 385, 72 A. 27; the syllabus states the rule: “A person who excavates a trench in a public highway and places therein a sewer for property owners, under a private contract with them, is bound to restore the street to a safe condition, and this duty is not answered by simply replacing the excavated earth and leaving the street without further examination or attention, for he is charged with the knowledge that earth in a newly filled trench is likely to settle after a heavy rainfall, which imposes on him a duty to ascertain whether under such circumstances that condition exists, and, if it does, to make the necessary repairs.”

The objection of the appellants to the conclusion of the court that defendants' carelessness and negligence “was the sole proximate cause” of the plaintiff's accident and injuries, we believe, is answered by the rule just quoted, for if the fill had been maintained on a level with the surrounding surface there would have been no hole for Mrs. Donahoo to fall into.

The appellants rely strongly upon their affirmative defense of contributory negligence and argue that the adverse conclusion reached by the trial judge upon that question cannot be supported for the reason that the conditions show contributory negligence upon the plaintiff's part as a matter of law. We believe, however, that the trial judge was entitled to treat it as a question of fact to be decided by him. If one considers the actions of Mrs. Donahoo, aware as she was that her daughter and her friend, Miss Young, over a period of two weeks or more, had made frequent trips to and from her house to the fence corner where the boards had been ripped off, can it be said that she was contributorily negligent in taking a path which she knew existed and which, until then, had proven safe? Undoubtedly, this was one of the questions which the court had in mind when considering the subject of contributory negligence. Even if the lights, which Mrs. Donahoo turned on before making the trip, did not illuminate all the area traversed, the court would still be entitled to consider, as bearing upon the question of contributory negligence, the fact that she was able, nevertheless, without any apparent difficulty, to go to the fence corner where she met Miss Young before turning back toward her house. These conditions, in our opinion, sufficiently answer the contentions of appellants that the respondent was guilty of contributory negligence as a matter of law, and, at the same time, furnish a substantial basis for the court's decision in favor of the respondent upon the question of contributory negligence as one of fact, a decision which, so far as we are concerned, is conclusive. Hansen v. Cordoza, 1930, 106 Cal.App. 500, 502, 290 P. 62.

Judgment is affirmed.

I dissent. It is, of course, unfortunate that plaintiff did not carry accident insurance, but I think the trial court went too far in an effort to extricate her from that dilemma. In her attempt to collect compensation for her injury she failed to establish a breach of duty by defendants under any principle of negligence, and if negligence had been shown, the judgment should have been in defendant's favor because plaintiff assumed the risk of using the premises under circumstances which clearly charged her with knowledge of their condition. She was guilty of contributory negligence as a matter of law.

One of the theories of liability adopted by the trial court, and given approval by the main opinion herein, is that defendants were under a duty to provide plaintiff and her daughter, while they were occupying the house, with a reasonably safe passageway for ingress and egress. Apparently it is attempted to fasten that duty upon them upon the theory that Kress Company (hereinafter referred to as defendant) assumed it by its agreement with the owner to move the houses. There is nothing to that effect in the agreement. By the terms of the agreement defendant was to have exclusive and uninterrupted possession of the buildings and properties for the carrying on of its work, but this meant no more than that the owner undertook to see to it that defendant's work was not interrupted or interfered with. It is entirely beside the point to say that the lessor was under a duty to carry on or to complete the contemplated work with ordinary care. It is likewise immaterial whether the owner was under a special duty toward plaintiff and her daughter as their lessor. Defendant assumed none of the lessor's duties toward the lessees, but, upon the contrary, was to be protected against any claims they might make against it. Defendant did not become a lessor nor did it enter into any other legal relationship toward the tenants by failing to object to their occupying the house while the work was going on. Plaintiff and her daughter were not, as to defendant, invitees upon the premises or any part of it. They were not upon the premises for a purpose directly or indirectly connected with business dealings with defendant but as to defendant were using the premises solely for their own purposes and as a mere favor. Their presence on the land was tolerated but that did not amount to an invitation to use it. Polk v. Laurel Hill Cemetery Ass'n, 1918, 37 Cal.App. 624, 632, 174 P. 414. A mere licensee has no right to have the premises maintained in a reasonably safe condition for his use nor the right to assume that they will be so maintained. Aguilar v. Riverdale C. C. Ass'n, 1930, 104 Cal.App. 263, 266, 285 P. 889; Lindholm v. Northwestern Pac. R. R. Co., 1926, 79 Cal.App. 34, 37, 248 P. 1033. The judgment therefore cannot properly be sustained on the theory that defendant was under the duty to maintain a safe passageway and that it violated that duty.

It does not follow that defendant was under no duty toward plaintiff. It was under the general duty, declared by section 1714 of the Civil Code, not to injure plaintiff by its want of ordinary care or skill in the management of its property. Both plaintiff and defendant were rightfully on the premises, plaintiff using certain portions thereof for the purpose of ingress and egress and defendant using the entire premises in such manner and to such extent as might be necessary or convenient in the work of moving the houses. Since both were rightfully on private premises, their rights and responsibilities toward each other, measured in legal terms, were no different from those of two persons rightfully using a street or sidewalk, that is to say, those which arise out of the duty to use ordinary care. Donnelly v. Hufschmidt, 1889, 79 Cal. 74, 21 P. 546; Hayden v. Paramount Products, Inc., 1939, 33 Cal.App.2d 287, 91 P.2d 231.

The truism that the question of negligence or the failure to exercise ordinary care must be determined under the circumstances of the particular case has peculiar application here. It involves an examination of the arrangement made between plaintiff and her daughter on the one hand and the lessor on the other, when the lessor consented that the former might remain in the house while the two houses were being moved. This is true only because defendant had knowledge of the arrangement and also gave its consent to the occupancy of the house. And it is necessary in order to give a true picture of the conditions under which the parties were to use the premises. The lessor of necessity gave his implied consent that the tenants might use the premises to the extent necessary to pass to and from the house. And it may be conceded that the lessees were, to that limited extent, invitees of the lessor because the relation of landlord and tenant had not been terminated by any new agreement, but continued as one of mutual advantage to the parties. But the lessor's consent, or we may say his invitation, was not unconditional. It was a consent that the lessees might use the premises as necessary in going to and from the house under conditions created in carrying on the work. There was no agreement as to how the work would be done nor how the premises would be kept. There was a mere privilege extended to the lessees to use the premises as they might find them, and that is exactly what they did, without complaint or remonstrance, or, in other words, they accepted the conditions with the privilege. One of the conditions necessarily implied was that the work of moving the houses would be carried on in the usual and customary manner. As shown from pictures appearing later in this opinion, the work was carried on after the fashion of house movers, which everybody knows is by means of much heavy equipment and a littering up of the premises in a manner peculiar to house moving operations. That is exactly what plaintiff and her daughter impliedly agreed to when they sought and obtained from the lessor permission to remain in the house while the work went on. Plaintiff's right so to use the premises was subordinate to defendant's right to carry on its work, that is to say, defendant was under no duty not to use any particular part of the premises that plaintiff and her daughter might wish to use, or to maintain them in a safe condition, but, upon the contrary, the latter, as I have said, were privileged to use them in the condition in which they might find them. It is suggested in the main opinion that the hole was in the nature of a trap, but it was no more of a trap than the timbers were which plaintiff had climbed over on her outward trip and which she was climbing over when she fell. It was no more of a trap than would have been a stake driven in the ground or any other obstruction left upon the premises. People of ordinary prudence are supposed to look where they are walking, to see what their footing will be. A hole in the ground that anyone with ordinary vision can see may become a trap at night, but if plaintiff stepped into a trap, it was one she made for herself by wandering around the premises in the dark. If it was negligent for defendant to leave a hole 12 or 15 inches deep and 5 feet long which had been excavated in daylight hours and had remained in open sight of the tenants, it would have been negligent to place and leave any obstruction upon any part of the premises which plaintiff might have chosen to use as a means of entrance or exit. It was not the duty of defendant to pick up all of its equipment each evening or to illuminate the premises or to maintain warning lights upon each object over which a pedestrian might stumble. And so far as the particular locality is concerned, it is to be noted that there was no proof that defendant knew that anyone was traveling between the house and the hole in the fence at the rear, or that small pieces of boards had been placed close to the excavation as “stepping stones” through the mud. Certainly defendant was under no obligation to do any more for plaintiff's safety than plaintiff under the circumstances had a right to expect, and plaintiff had no right to expect defendant to maintain an open, unobstructed way for passage to and from the house, especially one which was chosen and had been used without defendant's knowledge. One who carries on work that necessarily involves danger to those who come upon the premises where the work is going on is not obliged to change the manner of doing his work because strangers do come upon the premises either as licensees or invitees. If he carries on his work in the usual manner and the dangers of it are obvious, he is not guilty of negligence in failing to take unusual precautions to avoid injury to those who use the premises.

The main opinion takes no account of the peculiar conditions under which plaintiff and defendant, respectively, were using the property, but holds defendant to the same measure of care that is demanded of one who operates a store, market, hotel, or other place of business patronized by the public, where those invited to use the premises have the right to expect reasonably safe conditions. The law requires of every proprietor no more than that he shall keep his own place of business in that condition of safety that is found in like places of the same business as operated by persons of reasonable prudence and caution––the condition in which patrons of such places usually and reasonably expect to find such premises. The courts have no right to impose upon house movers the duty of keeping the premises they use in the condition of safety that is demanded of proprietors of public store buildings. It would be rewriting the law of negligence to say that everyone, no matter how hazardous his business, must carry it on in such a manner that those who come upon his premises either as invitees or licensees will be reasonably free from danger. For these reasons I think there is no basis for a finding of negligence on the part of defendant.

The next point, and one which I think is also conclusive, is that plaintiff assumed the risk of using the premises. On this point attention will be called to the general condition of the premises, which plaintiff knew and should have known. What she knew of the exact condition at the point of the accident and what she did will be pointed out later on the subject of contributory negligence. She had lived in the property with her daughter for at least three weeks during the moving operation, which included many activities preparatory to a change in the location of the buildings both before and after they were moved. Defendant had a right to believe that the tenants would make use of their faculties to observe the conditions under which they were living. The rules as to assumption of risk are the same as they would have been if defendant had been responsible for the safe condition of the premises, and defendant certainly could have had no greater duties than those of an owner. Restatement, Torts, p. 927, sec. 340, reads as follows: “A possessor of land is not subject to liability to his licensees, whether business visitors or gratuitous licensees, for bodily harm caused to them by any dangerous condition thereon, whether natural or artificial, if they know of the condition and realize the risk involved therein.” (Italics ours.) Comment e reads as follows: “Assumption of risks by licensee. A licensee's privilege to enter land in the possession of another is derived solely from the possessor's consent which he is free to give or withhold, the licensee not being entitled to enter without it. The licensee is, therefore, entitled to nothing more than knowledge of the actual conditions, which he will encounter if he avails himself of the possessor's consent. If he knows the actual conditions, he has an opportunity to exercise an intelligent choice as to whether the advantage to be gained from his entry is sufficient to justify him in incurring the risk which he knows is inseparable from it.” This statement applies to invitees as well as to gratuitous licensees. Conditions under which plaintiff had been and was living at the time of her injury are best portrayed by some of the photographs which were in evidence. Three of such pictures follow.

“A”, which was introduced as Plaintiff's Exhibit 4, shows what plaintiff would have seen if she had looked to the north from her house toward Hollywood Boulevard (the planks “E” were placed after the accident). “B” is what would have been directly in front of her as she emerged from her front door, as she did on the night of her unfortunate excursion. “C” portrays the course of her travels looking back past the place where she fell toward the house and showing the timbers which she climbed over and the concrete coping which she described. The heavy timber extending from beneath the house at the left in picture “C”, which appears to be about a 12 x 12 timber, reached to within about 18 inches of the corner of the Donahoo house. It was about shoulder high, according to plaintiff's daughter, and in passing it was necessary to turn sidewise and squeeze between it and the house. The place on the other side of the beam at the spot marked “X” is where plaintiff fell. The boards shown in the picture were not those which plaintiff walked upon. The latter boards were none of them a foot wide, but were small short pieces. The “little white board” which plaintiff slipped upon was about three inches wide and a foot or two in length. One of the beams over which she climbed was an 8 x 8. The depression in question extended for 5 or 6 feet easterly and westerly on the north side of the Donahoo house within about a foot of the north wall, and its westerly end was about 4 or 5 feet west of the west wall of the house. Although plaintiff turned on lights in two of the rooms and a light on the front porch, the porch light would not have shone upon the point where plaintiff fell, and the other lights shining through windows rather high above the ground could not possibly have illuminated the point of the accident. In fact the evidence is that it was dark at that point––so dark that plaintiff did not see the depression either before or after her fall. It is said that plaintiff had remained in the house practically all of the time while the work was going on and that she did not know about the hole and had never traversed the so–called pathway to the fence. But the excavation had been made close to her front doorstep and had been used in shifting the other house, and I think it can avail plaintiff nothing to plead ignorance of the condition of the premises surrounding her house. It would be preposterous to say that anyone in the possession of his senses could have lived for weeks in plaintiff's surroundings and been utterly oblivious of them. Plaintiff knew the conditions from the house to Hollywood Boulevard, because she had traveled that way. The pictures show those conditions and the evidence was that what had been a sidewalk was torn up and littered with all manner of obstructions. No representations or promises had been made to plaintiff with respect to the maintenance of a pathway. Being a mere licensee as to defendant, she had no right to expect it to maintain a pathway and there was no evidence that she did. And in discussing the point of assumption of risk and what plaintiff had a right to expect, I repeat that there was no evidence that defendant knew that anyone had been passing between the house and the hole in the fence or that pieces of boards had been placed along this route through the mud. If defendant was under no duty to maintain the premises in a safe condition, it was under no duty to inspect them in order to find out what use was being made of them. Plaintiff had no right to expect of defendant performance of duties other than those imposed by law. And with respect to plaintiff's conduct, regardless of the question of defendant's duty, it is undeniable that she had no right to act upon the assumption that defendant would keep the premises in an orderly and safe condition, because she knew that that was not being done. She could have seen what was in front of her front doorstep unless she had closed her eyes to what was in plain sight. If she was not warned by what she saw, what more would have been needed to warn her? If she did not know that there was a risk involved in walking about these premises on a dark night, especially portions which she had never seen nor inquired about, what more would have been required to make her realize that she was assuming a risk? If defendant had built a fence around the depression, it is quite possible that plaintiff would have run into it, for “there are none so blind as those that will not see.” And there is the inescapable fact that plaintiff did not step into the hole but slipped and fell as she was climbing over a timber and stepping onto a board laid in the mud, an adventure that would have involved obvious perils in the daytime and far greater ones at night. But aside from the fact that plaintiff knowingly and deliberately picked her way from board to board, on slippery ground, and fell while climbing over a timber on the return trip, I ask whether anyone seeing the condition of the premises, as shown in the pictures, could reasonably claim that she did not know and could not have learned, in the exercise of ordinary care, that it would be dangerous to walk about the premises in the dark? If defendant is liable in damages under the facts in evidence, it would have been liable if plaintiff had stumbled in the dark over any one of the numerous timbers, boards, ropes, cables, jacks, rollers, tools, piles of dirt or other obstructions which pretty well covered the lot and which she might have encountered while walking around the premises on a dark night.

Plaintiff not only assumed the risk of her jaunt at the time she entered upon it, but she was negligent as a matter of law in continuing with it under the obviously dangerous conditions. The defense of contributory negligence was established by the testimony of plaintiff alone. On her way to the hole in the fence she had stepped from board to board, climbed over two timbers and stepped down from a cement coping onto a paved passageway. It was in retracing her steps that she fell. She described her fall as follows:

“A. I stepped on the first beam with my right foot, after passing over the coping, and leaving the paving, I stepped on the beam––the first beam, with my right foot, and then over on the left beam with my left, and then down on this little white board with my right foot, which slipped into the hole or trench or whatever it was. I didn't see it before I slipped into it, or I never saw it afterwards; I never saw the hole.

“Q. What happened to you, that is, what position did you find yourself in when your foot slipped in the hole; describe your position to the Court. A. Well, the force of the fall sent me over the beam.

“Q. In what direction over the beam? A. South. It sent my body over the beam south, and the beam hit my knee, the sharp edge of the beam hit my knee, and I couldn't move.”

These are the circumstances under which the trial court has decided that plaintiff's accident was caused by defendant's fault and not her own. Putting aside all other considerations, such as the knowledge that plaintiff had or should have had as to the general condition of the premises, how can plaintiff plead ignorance of the conditions which she had met on the way out? She knew that she would have to climb over the timbers on the way back and step down onto the boards, and she took that exact risk. Is defendant to pay damages because plaintiff chose to return by the way she had come rather than by a safer, if longer, way back to the house? I think the law is the other way. Powers v. Raymond, 1925, 197 Cal. 126, 239 P. 1069; Bruce v. Risley, 1936, 15 Cal.App.2d 659, 59 P.2d 847; Cornell v. Hearst Sunical, etc., Corp., 1942, 55 Cal.App.2d 708, 131 P.2d 404.

The judgment should be reversed.

DESMOND, Presiding Justice.

PARKER WOOD, J., concurs.

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