BLUMBERG v. M. & T., Inc., et al.

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

BLUMBERG et ux. v. M. & T., Inc., et al.

Civ. 13793.

Decided: February 07, 1949

Ernest I. Spiegl of San Francisco, for appellants. Cooley, Crowley, Gaither & Dana and Cooley, Crowley & Gaither, all of San Francisco, for respondents.

Plaintiff, Charlotte Blumberg, and her husband, were invited by a tenant in an office building owned and operated by the defendants to inspect the tenant's newly-refurnished office. While crossing the lobby of the building Mrs. Blumberg fell and received the injuries forming the basis of this action. At the close of plaintiffs' case (her husband is a coplaintiff) defendants' motion for a nonsuit was granted.

The rules applicable to the power of the trial court to grant a nonsuit, directed verdict, or judgment notwithstanding the verdict, are well settled, but sometimes overlooked. They were correctly and briefly set forth in the frequently cited case of In re Estate of Lances, 216 Cal. 397, at page 400, 14 P.2d 768, as follows: “A nonsuit or a directed verdict may be granted ‘only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff if such a verdict were given.’ * Unless it can be said as a matter of law that, when so considered, no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it upon appeal, or the trial court to set it aside as a matter of law, the trial court is not justified in taking the case from the jury.” See, also, Biondini v. Amship Corp., 81 Cal.App.2d 751, 185 P.2d 94; Docherty v. Key System, 80 Cal.App.2d 888, 184 P.2d 33; Williamson v. Pacific Greyhound Lines, 78 Cal.App.2d 482, 177 P.2d 977; Neel v. Mannings, Inc., 19 Cal.2d 647, 122 P.2d 576. If these rules be applied to the present record it is quite apparent that there is substantial evidence, and reasonable inferences from that evidence, that would have supported a judgment in favor of plaintiff had such been rendered. This being so, it was error to have granted the motion for a nonsuit.

The complaint alleges that on July 26, 1945, Charlotte Blumberg entered the building, which is owned and operated by the defendants, at the express invitation of one of the tenants; that defendants “negligently and carelessly maintained in the main lobby of the real premises a floor covering or mat which was installed in such a manner as to require all persons using said lobby entrance to cross over same, and which was constructed in such a manner that its surface comprised a series of rectangular openings divided by strips of rubber or similar material. At said time and place said mat was negligently and carelessly installed or maintained by defendants in such a manner that the openings, above referred to, were larger, in at least one dimension, than the dimension of the heel of a woman's standard shoe”; that by reason of the above facts, “plaintiff Charlotte Blumberg's left heel was then and there caught in one of the openings of said mat, causing the said plaintiff to trip or slip and further causing her to be thrown to the floor with great force and violence, thereby sustaining severe and grievous mental and physical and permanent injuries.”

Defendants denied these allegations and affirmatively pleaded contributory negligence on the part of the plaintiff, Charlotte Blumberg.

The facts as disclosed by the settled statement support the allegations of the complaint. It was stipulated at the trial that the mat upon which Mrs. Blumberg claims to have been injured “is composed of small pieces or strips in a row, running in both directions at right angles, leaving open spaces between the solid matter of varying sizes up to but not greater than one and one-sixteenth of an inch by five-eights of an inch.” The mat was a large one located on the lobby floor between the elevators and the front entrance to the building, and in such a position that one leaving or entering the elevators would pass over it.

Mrs. Blumberg testified that on July 26, 1945, she and her husband had dinner with Mr. and Mrs. Melvin Isaacs; that Isaacs was a tenant in the office building in question; that he invited the Blumbergs to see his newly-refurnished office; that after inspecting the office the party of four proceeded back to the lobby by means of the elevator. She described what then happened as follows: “I remember taking a few steps and then all of a sudden—of course, this happened so fast, much faster than I can tell you—there was a feeling as though something held me down and right with that simultaneously my head was hitting this terrazzo floor and someone called out. It was all in one, this blow here; I just remember going down and cracking my head.

“Q. Before you go any further with the results, you said there was a feeling as if something held you? A. Yes, I was caught and there was no place to go but down.

“Q. Where was this feeling, in your head, arm, foot or what? A. No, just I felt, just a foot that was, I guess, taking a step forward.

“Q. Was there any sensation as if your foot had slipped? A. Oh, no.

“Q. Was there any sensation of your ankle having turned? A. No.

“Q. Was there any pain in your ankle at all? A. No, there was no sensation until my head hit.

“Q. In what portion of the lobby were you walking when you had this feeling that something held your foot? I mean by that * on the mat, or the marble or terrazzo floor, or what? A. On this large mat.

“Q. On the mat? A. Yes.

“Q. As you fell in what direction of the lobby did your body land? A. Toward the door.

“Q. Any part of your body on the mat? A. Yes, a portion of it. I don't know just how much *

“Q. Do I take from your answer then that the balance of your body or a portion of it was off the mat? A. Yes, I know my head was and I know my legs were on the mat because my stocking had the complete marks of the mat up one leg.”

Mrs. Blumberg then identified the shoe she was wearing on her left foot at the time of the accident, and it was introduced into evidence. On cross-examination she testified that she did not remember noticing the mat when she entered the building; that she was not looking down at the floor when she fell, but was walking in the manner she always walks; that she does not customarily look down when she is walking; that she does not remember seeing the mat at all; that there was enough light in the lobby to see; that at the time of the accident she was just trying to take a step; that she does not remember which leg she was putting forward at the time she fell; that her left heel was the one that was caught; that she did not sprain her ankle, nor did she trip or slip; that she was caught and it felt like a pull. The testimony continues:

“Q. Now, another thing, did you tug at your foot and consciously try to pull it loose from something? A. I just remember the pull and then my head hitting. *

“Q. Well, how hard a pull was it, what was pulling, where was it pulling and how much? A. I was on the floor so quickly that I just don't know except that it was enough to deter me from the next step and I was down, within a split second, I guess.

“Q. Did your right foot reach the floor before you fell? A. I don't think so. I don't know. I think my head hit first.

“Q. Do you know what happened to your right foot? A. No, I really don't.”

A representative of S.H. Frank & Company, leather tanners and handlers of accessories and all parts of shoes, who had had twenty-eight years of experience in the shoe business, then qualified as an expert on women's shoes. He testified, without objection, that the shoe worn by Mrs. Blumberg the evening of the accident has a medium spike heel; that over 60% of all women's shoes sold in the Bay area are high-heeled shoes; that there are many types of high heels, some taller and some shorter than the heel on Mrs. Blumberg's shoe; that the usual measurement across the base of such a spike heel is eleven to twelve-sixteenths of an inch, but that the heel on Mrs. Blumberg's shoe had been trimmed so that it measures fourteen-sixteenths of an inch across the front of the base and thirteen-sixteenths of an inch from front to rear; that it is a usual type of heel; that about 60% of the women in San Francisco wear this type of heel for street wear; that the shoe was not an evening shoe, but a regular street shoe.

The heel is in the shape of an inverted cone with the smallest dimension of the cone touching the ground in walking. The result is that, when Mrs. Blumberg had the heel “trimmed”, it became larger at its base than when it came from the factory. The expert testified that this heel was larger at it base than the usual size of spike heels normally worn by over 60% of the women of this area for daytime street wear.

Melvin Isaacs testified that he was a tenant of the building in question, and corroborated Mrs. Blumberg as to the circumstances surrounding the visit to his offices. After generally describing the lobby and identifying a photograph showing the mat on the lobby floor, he testified that when the party came down in the elevator the two men were in the lead and walked towards the lobby entrance; that he heard a thud, looked around, and saw Mrs. Blumberg prostrate on the floor; that her face was on the hard marble floor with her head towards the entrance, and the lower part of her body on the mat.

Mrs. Isaacs corroborated the other two witnesses and also testified that Mrs. Blumberg was slightly ahead of her when they left the elevator; that she saw Mrs. Blumberg fall “and she fell absolutely straight as though she had had something hold her or pull her. * She fell in one straight piece. I mean she fell as though her head * had fallen from the height of the top of her body—I mean in only one piece, she fell, and the thud was so loud you could hear the crack of her head against whatever substance it was she fell against, just straight forward, straight down. * I saw her fall straight, in one straight piece * her knees didn't go down first, her arms didn't go down first”; that she did not notice any turning of the ankle; that there was no bending of the legs; that there was nothing unusual about Mrs. Blumberg's walk just before the accident; that Mrs. Blumberg was not running, nor did she slip.

Coplaintiff Benjamin Blumberg testified that he did not see his wife fall; that on hearing her fall he returned to her; that immediately after the fall he “checked over the mats. I just wanted to see what was wrong”; that he did not find any foreign matter and no foreign substance on the mat; that he saw no scratches or gouges or marks of any kind.

On this evidence the trial court granted defendants' motion for a nonsuit.

There are certain elementary principles of law applicable to these facts. Plaintiffs were visitors of the tenant, and, as such, invitees of the owners and operators of the building while in the lobby. Crane v. Smith, 23 Cal.2d 288, 144 P.2d 356; Reuter v. Hill, 136 Cal.App. 67, 28 P.2d 390; Yamauchi v. O'Neill, 38 Cal.App.2d 703, 102 P.2d 365; Restatement of Torts, Vol. 2, § 332. In Brown v. Pepperdine, 53 Cal.App. 334, 200 P. 36, this Court, after stating the above rule, then declared that the owner owes such invitee a duty to use ordinary care for such invitee's safety. The Court stated the rule as follows 53 Cal.App. at page 336, 200 P. at page 37: “It has been repeatedly held that when a building is let in flats or offices, the hallways, entrances, and stairways not being demised to the tenants but used in common by all, the landlord owes a duty to those visiting the premises to use ordinary care to avoid injuring them.”

The precise duty owed by the owner or operator of an office building toward invitees of his tenants is thus clearly stated in the Restatement of Torts, Vol. 2, § 343:

“A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he

“(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and

“(b) has no reason to believe that they will discover the condition or realize the risk involved therein, and

“(c) invites or permits them to enter or remain upon the land without exercising reasonable care

“(i) to make the condition reasonably safe, or

“(ii) to give a warning adequate to enable them to avoid the harm. *”

In comment “f” in this section there is expressed a thought peculiarly applicable to the present case: “A possessor who holds his land open to others for his own business purposes, must possess and exercise a knowledge of the dangerous qualities of the place itself and the appliances provided therein, which is not required of his patrons * [He is] required to have a superior knowledge of the dangers incident to the facilities which he furnishes to them.”

These rules of liability have been adopted in this state. See. Kircher v. Atchison, T. & S.F. Ry. Co., 32 Cal.2d 176, 195 P.2d 427; Neel v. Mannings, Inc., 19 Cal.2d 647, 122 P.2d 576; Blodgett v. B.H. Dyas Co., 4 Cal.2d 511, 50 P.2d 801; Ralph v. Clifton's Brookdale, Inc., 85 Cal.App.2d 574, 193 P.2d 511; Biondini v. Amship Corp., 81 Cal.App.2d 751, 185 P.2d 94; DeLay v. Braun, 63 Cal.App.2d 8, 146 P.2d 32; Jones v. Bridges, 38 Cal.App.2d 341, 101 P.2d 91.

It will be noted that the duty exists not only in reference to dangerous conditions known to the owner or operator of the building, but also to conditions which, by the exercise of reasonable care, he would or could have discovered. He is under a positive duty to inspect. The mere fact that he has no actual knowledge of the dangerous condition is not a defense. He has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and must inspect them or take other proper means to ascertain their condition. If, by the exercise of reasonable care, he would have discovered the dangerous condition, he has violated his duty and is liable. Mondine v. Sarlin, 11 Cal.2d 593, 81 P.2d 903; Wills v. J.J. Newberry Co., 43 Cal.App.2d 595, 111 P.2d 346; Van Wye v. Robbins, 48 Cal.App.2d 660, 120 P.2d 507.

Of course the owners and operators of the building are not insurers of the safety of business visitors. McKellar v. Pendergast, 68 Cal.App.2d 485, 156 P.2d 950. There must be proof of negligence and proximate cause, and such proof must do more than raise a mere conjecture, suspicion or speculation. Chapman v. Title Ins. & Trust Co., 68 Cal.App.2d 745, 158 P.2d 42. Moreover, if the danger is obvious, and if the means of knowledge on the part of the business visitor and the owner and operator are equal, no liability attaches. Blodgett v. B.H. Dyas Co., 4 Cal.2d 511, 50 P.2d 801; Royal Ins. Co. v. Mazzei, 50 Cal.App.2d 549, 123 P.2d 586; Restatement of Torts, Vol. 2, § 340.

If these rules be applied to the facts here involved it is quite apparent that it was error to have taken the case from the jury. Here the owners and operators of the building have equipped the lobby of their building with a mat containing open spaces that measure 1 1/16116‘ by 10/161016‘. The heel of Mrs. Blumberg's shoe was 14/161416‘ by 13/161316‘. It is obvious that the heel of a shoe that size could not enter any of the holes in the mat if the heel came down on the mat directly parallel to it, because both demensions of the heel are larger than the smallest dimension of the open space. But, in walking, the heel of a woman's shoe of the type here involved meets the floor at various angles dependent upon the stage of the step then involved. If the heel met the mat directly over an open space at an angle, it would inevitably enter that space and would become wedged therein. A reading of the evidence above set forth demonstrates that it is a reasonable inference that that is the way the accident happened. It must be remembered that Mrs. Blumberg testified that her ankle did not turn, nor did she trip or slip; that “something held me down”; that “Yes, I was caught and there was no place to go but down”; that her left heel was the one that was caught and it felt like a pull. Mrs. Isaacs testified that Mrs. Blumberg did not trip or slip, but fell straight forward as she would obviously do if her heel was caught in one of the holes in the mat. To say the least, such evidence raises a reasonable inference that the cause of the fall was that Mrs. Blumberg's heel on her left shoe was caught in one of the openings of the mat. This inference was greatly strengthened by Mr. Blumberg's evidence that he examined the lobby floor immediately after the accident and found no foreign substance on or near the mat. For the purposes of this appeal it must be accepted as proved that the accident happened as above described.

The next question is whether the use of such a mat containing openings into which a normal-sized heel of a woman's shoe could become wedged in the normal process of walking constituted a violation of defendants' duty to maintain the lobby in a reasonably safe condition. The answer seems obvious. Defendants having equipped the lobby with the mat were chargeable with knowledge of its construction. They certainly had a knowledge of this fact superior to that of Mrs. Blumberg. The contention that, if the mat constituted a trap, it was located in a lighted lobby, and that Mrs. Blumberg could see its construction, and therefore was guilty of contributory negligence as a matter of law in walking over a mat of the type here involved is not sound. In entering an office building the visitor is not required to assume that the persons chargeable with keeping that lobby in a reasonably safe state have created an artificial condition that might entrap the visitor. Such a visitor is entitled to assume, and to act on the assumption, that the owners and operators of the building have performed their duty, and that the lobby is in a reasonably safe condition. He is certainly entitled to assume, and to act on such assumption, that no traps have been laid in the lobby, and that the floor of that lobby may be safely used.

But, say defendants, the mat was neither “dangerous” nor “defective,” in the sense that there was no evidence that the mat was worn or defective in its construction. They urge that, if the accident happened as claimed by plaintiffs, it was caused by the fact that plaintiff was wearing shoes with “spike” heels, and not by the mat. The argument is unsound. As already pointed out, Mrs. Blumberg had a right to assume, and to act on the assumption, that defendants had performed their duty of making the lobby safe while being used in a normal fashion. She was wearing a normal type shoe equipped with a normal type heel. Defendants invited persons, including women in the status of plaintiff, to enter and use that lobby. They knew, or should have known, that a majority of women in San Francisco (the evidence shows 60%) wear shoes equipped with heels of the size or smaller than the ones worn by Mrs. Blumberg. They placed in the lobby a contrivance well calculated to trap women wearing shoes equipped with heels of the type here involved. If, instead of a mat containing open spaces of the size here involved, defendants had cause holes to be drilled in the lobby floor of the same size as the open spaces in the mat, and if the other facts were the same as are here involved, there would be no doubt that such would constitute a violation of the duty owed by an owner or operator of a building to his invitees. Legally, there is no distinction between the two situations.

From what has been said it follows that since the evidence, and the reasonable inferences therefrom, show that defendants knew, or should have known, of the normal size of the heels on women's shoes, and knew, or should have known, that the mat in question was inherently dangerous in relation to such a heel, the jury was entitled to determine whether defendants' failure to change the mat or warn the public constituted negligence, and whether such negligence, if found, was the proximate cause of the accident.

Defendants argue that the entire case of plaintiffs is built upon circumstantial evidence, and that in order to arrive at the conclusions that defendants were negligent and that such negligence was the proximate cause of the injuries, the jury would have to base one inference upon another. It is urged that the law will not permit the trier of the fact to base one inference upon another. That is not a correct statement of the law. This problem was discussed at length by this court in Vaccarezza v. Sanguinetti, 71 Cal.App.2d 687, at pages 697–702, 163 P.2d 470. At page 698 of 71 Cal.App.2d, at page 476 of 163 P.2d, appears the following statement of the law: “It may be true that some of the other facts here found to exist are based on circumstantial evidence and that such facts are used as a basis of proving, by inference, other facts. But the mere fact that a found fact is based upon circumstantial evidence and is used as a partial basis for another found fact does not of itself violate the reasoning processes permitted by our law. See 1 Wigmore on Evidence, p. 434, § 41; 1 Jones on Evidence, Horwitz Ed., p. 39, § 6e. The statement appearing in some cases that an inference cannot be based upon an inference, usually without citation and certainly without adequate discussion, does not and cannot mean that an inference cannot be based upon a fact which is itself based upon circumstantial evidence. If that were the rule it would mean that few cases based on circumstantial evidence could ever be tried because it is seldom indeed that but one fact, in such a case, is based on circumstantial evidence. If that were the rule the hundreds of decisions in our books affirming judgments where the findings contain a series of facts each proved by circumstantial evidence would necessarily be wrong. Nearly all departments of reasoning are based upon deducing one fact from another fact that has itself been deducted from a prior fact. The only fallacy that may occur in such reasoning is where a deduced fact is based upon circumstantial evidence that is unreliable, is too remote or is too conjectural. The true rule is and should be that an inference cannot be based on an inference that is too remote or conjectural. In a civil case, if the first inference is a reasonably probable one it may be used as a basis for a succeeding inference. This is the only conceivable basis upon which the otherwise apparently conflicting cases can be reconciled.”

The Court, after discussing many cases, then concludes as follows, 71 Cal.App.2d at page 702, 163 P.2d at page 479: “In the present case each fact found by the trial court, although many of them are based on circumstantial evidence, is a reasonable and probable deduction from the evidence. The deductions or inferences are not too remote or too conjectural. They are not based on guesswork, but on reasonable probabilities. This being so, the findings cannot be disturbed by this court under the rules of law discussed in the first part of this opinion.

This reasoning clearly applies to the instant case.

The judgment of nonsuit is reversed.

I dissent.

I agree with the statement in the majority opinion that, “Of course the owners and operators of the building are not insurers of the safety of business visitors. McKellar v. Pendergast, 68 Cal.App.2d 485, 156 P.2d 950. There must be proof of negligence and proximate cause, and such proof must do more than raise a mere conjecture, suspicion or speculation. Chapman v. Title Ins. & Trust Co., 68 Cal.App.2d 745, 158 P.2d 42. Moreover, if the danger is obvious, and if the means of knowledge on the part of the business visitor and the owner and operator are equal, no liability attaches. Blodgett v. B.H. Dyas Co., 4 Cal.2d 511, 50 P.2d 801; Royal Ins. Co. v. Mazzei, 50 Cal.App.2d 549, 123 P.2d 586; Restatement of Torts, Vol. 2, § 340.” However I am unable to approve that portion of the majority opinion which asserts that “They (defendants) placed in the lobby a contrivance well calculated to trap women wearing shoes equipped with heels of the type here involved.”

The complaint alleges: “At said time and place said mat was negligently and carelessly installed or maintained by defendants in such a manner that the openings, above referred to, were larger, in at least one dimension, than the dimension of the heel of a woman's standard shoe.”

The complaint also alleges that “M. & T. Incorporated” is a corporation and the owner of the real property wherein the “mat” was located. The corporation and certain parties personally and as copartners doing business under the firm name of Coldwell and Banker answered denying the allegation in reference to the “dimension of the heel of a woman's standard shoe.”

There is no evidence of a foreign substance and no evidence of a mark in or out of any interstice near the spot where plaintiff fell. Likewise there was no evidence of a scratch on the heel of the shoe indicating that the heel was “caught”, nor any evidence that the shoe was disengaged from Mrs. Blumberg's foot.

There is no claim of a latent or patent defect in the maintenance of the mat. Plaintiff stated, “Although the size of the apertures may not be deemed a latent defect in the sense that they were hidden, they certainly cannot be deemed patent.” The complaint does not allege nor does the evidence divulge that it is a case within the classification of licensee or invitee actions for personal injuries where safe floors have become dangerous because of suddenly changed conditions and the owner knew of the change. Lopp v. First Nat. Bank of Portland, 151 Or. 634, 51 P.2d 261.

How the defendants could obtain knowledge of the various dimensions of the heels of women's shoes is not made plain in this appeal. Plaintiffs seem to be content to merely state that defendants should know the dimensions of the standard shoe as distinguished from the standard size of the base of the heel.

The authorities cited in the majority opinion are not in point. The motion for nonsuit does not involve whether plaintiff should have any knowledge of “holes in the pavement” as in the decision on the appeal on the merits in Kircher v. Atchison, T. & S.P. Ry. Co., 32 Cal.2d 176, 195 P.2d 427, 433; See also Blodgett v. B.H. Dyas Co., 4 Cal.2d 511, 50 P.2d 801, nor is this a case involving the holding of an owner liable for the injured party's “forgetfulness of a known danger”. Neel v. Mannings, Inc., 19 Cal.2d 647, 122 P.2d 576, 581. This case is not analogous to one involving a “cursory inspection” by a contractor of a scaffold, Biondini v. Amship Corp., 81 Cal.App.2d 751, 185 P.2d 94, nor “an excursion beyond the limits of his (plaintiff's) original purpose”. DeLay v. Braun, 63 Cal.App.2d 8, 146 P.2d 32, 33. In Ralph v. Clifton's Brookdale, Inc., 85 Cal.App.2d 574, 193 P.2d 511, 512, the question of negligence was based upon “intermittent illumination”. The lighting of certain steps was obtained from a “loom or glow”. There were periods when the illumination was discontinued. During the changed or darkened period, plaintiff in that case “was unable to distinguish objects around her”. In the Ralph case the question involved was the “adequacy of the lighting” for any person to step from a “stair”. There the defendant was charged with performing an act; namely turning off or causing to be turned off a light while guests were on a stairway leading from the main level of a restaurant to a lower level. It was the intention of the owners of the restaurant to leave the guests in a darkened room for a short period.

In the present case there is no mention in the pleadings and no suggestion in the evidence that any of the specifically named defendants or parties referred to under ficticious names knew that the small openings in the mat were larger in “one dimension, than the dimension of the heel of a woman's standard shoe”. Whether there is a standard shoe is unimportant. The real question if plaintiff has a cause of action is whether the heel of the shoe is recognized as standard in that all such heels are of the same dimension at the base. If it is not standard, owners of buildings, not being able to anticipate the various and changing dimensions of the base of the heel of a shoe, have nothing to which they can conform. A shoe salesman, called as a witness on behalf of plaintiffs, testified “that there was no such thing as a standard heel”.

There is no evidence that there was any defect or change in size of the interstices in defendant's mat from other similar safety devices. There is no evidence that any other woman had fallen on this mat or any other identical mat. There is evidence that the particular heel “had been trimmed down on a trimmer since it had left the factory” and that “the cap at the base of the heel was not factory-made but was put on by a repair shop”.

In view of the evidence introduced there is no room for a deduction upon which the trial court or the jury might conclude that the defendants should have known that the exhibit in question, a trimmed and repaired heel of a shoe, could have been “caught in one of the openings of said mat” as alleged in the complaint, or that such shoe “with the little extra piece of leather on the bottom of the heel” would be used on a safety device mat installed near the entrance to an elevator.

The judgment of nonsuit was correct in fact and in law. In my opinion a contrary decision carried to its logical conclusion results in a judicial declaration that a landowner is liable without fault for any accident occurring to an invitee on his premises.

PETERS, Presiding Justice.

BRAY, J., concurs. Rehearing denied; WARD, J., dissenting.