BURROUGHS v. BEN AUTO PARK

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

BURROUGHS v. BEN'S AUTO PARK, Inc., et al. (two cases).*

Civ. 14670.

Decided: March 27, 1945

McLaughlin & McGinley, of Los Angeles, for appellant. Parker, Stanbury & Reese, Harry D. Parker, and Peery Price, all of Los Angeles, for respondents Peery. Frank Karr, C. W. Cornell, and O. O. Collins, all of Los Angeles, for respondent Pacific Electric Ry. Co.

These are appeals by:

A. Plaintiff, from a judgment in favor of defendant, Pacific Electric Railway Company, after trial before a jury in an action to recover damages for personal injuries received by plaintiff when he fell off a parking lot of which defendant Pacific Electric Railway Company was the lessor;

B. Plaintiff, from an order granting a new trial to defendants Bessie E. Peery and J. J. Peery; and

C. Defendants Peery from the judgment rendered against them.

The following is a picture of the scene of the accident hereinafter described.

The evidence being viewed in the light most favorable to the defendants (respondents Pacific Electric Railway Company, Bessie E. Peery and J. J. Peery), the material facts are:

In January, 1940, defendant Pacific Electric Railway Company, the owner of a vacant lot located at 417 South Olive Street, Los Angeles, hereinafter referred to as the Auto Park, leased the same to defendant Ben Sirota for the term ending December 31, 1942. On July 16, 1942, at the request of Mr. Sirota, the lessor extended the term of the lease for three months, on a month to month basis. The Trenton Hotel owned by defendants Peery is a seven story building located adjacent to the southerly boundary of the surface of the auto park. The elevation of the surface of the auto park is approximately twelve feet above the surface of the ground floor of the Trenton Hotel. Between the south side of the auto park and the north wall of the Trenton Hotel, a narrow areaway or light well extends from Olive Street to the rear of the lot, a distance of approximately 160 feet, entirely within the premises of the hotel. At the time of the accident, the auto park was equipped with two light standards erected on its south boundary each about 20 feet high. One of these was located between 45 and 50 feet from Olive Street, and the other was approximately 60 feet further to the rear of the auto park. Both were equipped with lighting facilities and reflectors at the top, but the one nearer the rear or the westerly side of the auto park was unlighted on the night of the accident leaving the rear of the lot in relative darkness. There were also two lights on the northerly boundary of the auto park, and one or two on the westerly boundary, but none of these was lighted when the accident occurred.

At about 8 p.m. on January 28, 1943, plaintiff drove his automobile into the auto park and after paying the parking fee and receiving a parking ticket, proceeded to a nearby theater. At about 11 p.m., plaintiff returned to the auto park and being unable to immediately locate the attendant, plaintiff found his car parked at the southerly side of the auto park with two other cars parked directly in front of it. Plaintiff them contacted the attendant, told him where his car was, and requested him to remove the cars in front so he could drive his car out.

As the attendant stated to drive the first car, plaintiff proceeded toward his car, but as there was a second row of cars parked immediately to the east of that which included plaintiff's, he undertook to reach his automobile by walking south along the aisle to the east of the second row. It was plaintiff's intention to pass through the second row by walking in front of the rear vehicle, but on arriving there he discovered that there was no space between the two cars. The rear end of the last car in the second row extended over the light well. The illumination was poor and the light well was not discernible to plaintiff. As he proceeded to walk around the rear of the car he fell into the light well and received serious personal injuries.

Defendants concede that the auto park was in the same physical condition when it was leased in January, 1940, as when the accident occurred in January, 1943.

A.

Plaintiff relies for reversal of the judgment in favor of defendant Pacific Electric Railway Company on two propositions which will be stated and answered hereunder seriatim:

First: The trial court committed prejudicial error in instructing the jury as follows:

‘Insofar as the defendant Pacific Electric Railway Company is concerned you must determine its liability, if any, solely by considering the condition of the premises at the time Ben's Auto Park, Inc. or Mr. Sirota took possession. Anything that happened after that time is immaterial as to the Pacific Electric Railway Company, and if you find that considering the construction of the premises, together with the lighting facilities furnished, the property was reasonably safe for use as a parking lot at the time it was leased, the Pacific Electric Railway Company is not liable to plaintiff and you should under such circumstances return a verdict in favor of that Company, whether or not your verdict is against any other defendant or defendants.’

‘When a tenant enters into possession under a lease the owner parts with all his right to and control over the premises during the term of the lease and any extensions thereof. During the time the premises are occupied by the tenants the owner has no duty to make repairs to, or maintain the property so as to correct any defects or dangerous conditions arising after the tenant takes possession, and an owner is not liable for injuries resulting from defects or dangerous conditions in the leased property which occur after the tenant has taken possession.’

‘The evidence is undisputed in this case that prior to the expiration of the lease entered into between Ben Sirota and the Pacific Electric Railway Company covering the premises occupied by Ben's Auto Park, said lease was on December 16, 1942, extended and under such circumstances Pacific Electric Railway Company had no authority or right to enter upon the premises covered by said lease at the time originally fixed for the expiration thereof, or during the period of the extension and the lessee had the exclusive right to the use and occupancy of the property leased by him without interference by the Pacific Electric Railway Company as to the manner in which he conducted or maintained said premises.’

‘If you find from the evidence that the parking lot was reasonably safe to be used for that purpose at the time it was leased, and that the danger, if any, to persons using those premises arose after the tenant took possession, the Pacific Electric Railway Company cannot be held responsible for such danger, if any. In other words, if the parking lot was reasonably safe to be used for that purpose before the tenant took possession, the Pacific Electric Railway Company is not liable for a dangerous condition, if any, which arose from the manner in which the premises were thereafter used or maintained by the tenant.’

This proposition is untenable and is governed by an unbroken line of decisions in this state holding that negligence upon the part of a defendant is a question of fact for determination by the trier of fact, whose finding will not be disturbed by an appellate court if, as in the instant case, there is substantial evidence to support it. McWane v. Hetherton, 51 Cal.App.2d 508, 511, 125 P.2d 85.

Applying this rule to the instant case the jury having heard the evidence, impliedly found that plaintiff's injury was not due to any negligence of defendant Pacific Electric Railway Company but was due to the use to which the lessee had put the leased property. The lessee's negligence consisted in parking cars so that the rear portions thereof extended over the light well without maintaining proper safeguards, lights, or barriers so as to prevent patrons from being injured. Since the lessor is not liable for injuries resulting from the misuse of leased property by a lessee, Kalis v. Shattock, 69 Cal. 593, 600, 11 P. 346, 58 Am.Rep. 568; Lucid v. Citizens Invest. Co., 49 Cal.App. 257, 260, 193 P. 161; Meloy v. City of Santa Monica, 124 Cal.App. 622, 627 et seq., 12 P.2d 1072, defendant Pacific Electric Railway Company was free from negligence in the instant case.

Dennis v. City of Orange, 110 Cal.App. 16, 293 P. 865; King v. New Masonic Temple Ass'n, 51 Cal.App.2d 512, 125 P.2d 559; Boothby v. Town of Yreka City, 117 Cal.App. 643, 4 P.2d 589, are not applicable to the facts in the instant case for in such cases the injury was not caused by the use which the lessee made of the leased premises, but was caused by a defect in the condition of the premises which defect existed at the time the lease was executed.

Second: The trial court committed prejudicial error in refusing to instruct the jury as follows:

‘You are instructed that if you find from the evidence that defendant Pacific Electric Railway Company, a corporation, and defendant Ben Sirota made a lease of the auto parking lot referred to in the evidence for a public or semi-public purpose, and further find that the Pacific Electric Railway Company, a corporation, renewed such lease prior to the date of the accident, and if at the time of renewal of said lease the leased premises were in such condition as to make its intended use dangerous to other persons, and if that condition then was known to the defendant Pacific Electric Railway Company, or if it should have been known to it in the exercise of ordinary care, then Pacific Electric Railway Company, a corporation, is liable to the plaintiff for any injury proximately caused by the unsafe condition of said premises, provided, of course, that the injured person is not guilty of contributory negligence.’

‘If you find from the evidence that the auto park premises were in an unsafe and dangerous condition either at the time the Pacific Electric Company leased the same to the defendant Benjamin Sirota or on the renewal of the lease for the period commencing January 1, 1943, then I instruct you that Pacific Electric Company cannot, by any provisions of said lease with defendant Benjamin Sirota, be relieved from the duties owed to an invitee as I have outlined in these instructions.’

This proposition is likewise untenable since plaintiff admits on page 31 of his opening brief that the condition of the auto park was the same at the time of the accident as when it was first leased in 1940; therefore the jury was fully advised as to the condition of the auto park at the time it was leased, and defendant Pacific Electric Railway Company's responsibility for such condition.

Plaintiff also admits on page 35 of his opening brief that the only change in the premises from November, 1942, until the date of the accident was that only one of the five lights was illuminated when the accident occurred. This difference being merely a difference in the use of the premises, would not sustain a finding of liability upon the part of the Pacific Electric Railway Company in view of the rule stated in the authorities hereinbefore cited.

B.

At the time of the trial, defendants Peery offered to prove that until 1920 the southerly wall of the auto park, separating it from the Trenton Hotel property, was five or six feet above the surface of the property now used as an auto park. This offer the trial court rejected; however, at the time of the hearing of the motion for a new trial, the trial judge believed the refusal to admit this testimony was error and granted defendants Peery a new trial. The trial court's ruling in granting the motion for a new trial was correct.

It is the law that an erection or excavation already existing and not otherwise unlawful does not become unlawful when the abutting landowner creates a dangerous condition by altering the character of his property. Galiano v. Pacific Gas & Elec. Co., 20 Cal.App.2d 534, 542, et seq., 67 P.2d 388; Kleinberg v. Schween, 134 App.Div. 493, 119 N.Y.S. 239; Gordon v. Schween, 117 N.Y.S. 191.

Applying this rule to the facts in the instant case the trial judge should have permitted the defendants Peery to show that the dangerous condition was created by the lessee or owner of the auto park, and having failed to do so after an offer of proof was made, a new trial was properly granted as to such defendants.

Hansen v. Southern Pacific Company, 105 Cal. 379, 38 P. 957, is not in point. In that case the liability of the defendant was predicated upon its permitting the public to use a footpath over its land for more than twenty years. In the instant case the record is devoid of any evidence that defendants Peery ever knew or permitted any person to walk or climb from the auto park into the areaway where the accident occurred.

In view of our conclusions it is unnecessary to discuss other authorities presented by counsel, since they are all factually distinguishable from the instant case.

C.

Inasmuch as the order granting defendants Peery's motion for a new trial is affirmed, the questions presented on their appeal from the judgment against them have became moot and such appeal should be dismissed. North Confidence Mining & Development Co. v. Fitch, 58 Cal.App. 329, 336, 208 P. 328; Etchas v. Orena, 121 Cal. 270, 272, 53 P. 798; Ingalls v. Bell, 43 Cal.App.2d 356, 358, 110 P.2d 1068.

For the foregoing reasons the

A. Judgment in favor of defendant Pacific Electric Railway Company is affirmed;

B. Order granting a motion for a new trial as to defendants Bessie E. Peery and J. J. Peery is affirmed; and

C. Appeal by defendants Bessie E. Peery and J. J. Peery from the judgment against them is dismissed.

McCOMB, Justice.

MOORE, P. J., concurs.