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


Civ. 19377.

Decided: April 30, 1953

Kenny & Morris and Eleanor V. Jackson, Los Angeles, for appellant. Moss, Lyon & Dunn, Richard B. Coyle and Henry F. Walker, Los Angeles, for respondent.

By the instant action, plaintiff seeks to recover damages for injuries sustained by her when she fell on a sidewalk adjacent to defendant company's market.

It appears from the record that around 9 o'clock on the morning of April 14, 1951, plaintiff drove her automobile to Ralphs market at Pico Boulevard and Normandie Avenue in Los Angeles. She was accompanied by her husband and their two dogs. She parked the car in the lot back of the market and walked along the sidewalk on the Normandie side of the store to the entrance on Pico. As she walked she did not notice any water on the sidewalk. She purchased some ice-cream and in ten or fifteen minutes retraced her steps toward her parked car. At that time she observed ‘A lot of water. The sidewalk seemed to be quite flooded with water.’

As she proceeded, she stepped ‘very carefully into the water. After taking three or four steps, she ‘felt something slip’ under her foot. Immediately she slipped, her right foot went out from under her and she fell breaking her right wrist. She looked as she took each step and noticed that the water was not very clean. However, she saw no debris of any kind in the water, although she felt something under her foot before falling. When she reached home her dress was soiled and she brushed off some flakes of foreign matter.

Mr. William McKinney, a porter, had been employed by defendant company for 14 1/2 years to clean the store and take care of the sidewalks. He testified that vegatables were loaded and unloaded through a receiving door opening off the sidewalk on the Normandie side of the store and the empty crates were then transferred to the rear of the store by trucks. Occasionally he saw vegetable matter on the sidewalk. About 9 o'clock on the morning in question, he swept the sidewalk and the parking lot. As he returned to the store, he found some refuse on the sidewalk toward the rear of the building. He scooped it up and put it in the garbage container. He then dashed a bucket or two of hot water on the sidewalk and using his broom, ‘swept it from the side of the building to the curb completely. * * * I saw that the sidewalk was completely clear of water. * * * About 15 or 20 minutes later someone made a report that a lady fell on the sidewalk.’ He left the store and looked at the sidewalk where the accident occurred. ‘It was damp and drying partially; drying.’ Except for the dampness there was no foreign matter on the walk in that area.

The manager of the store testified that he examined the sidewalk on the Normandie side of the market immediately after he was told of the accident. He stated that it ‘was clean but damp in places where it showed evidence of having been washed off, and there was no debris on the sidewalk, on the side of the building, near where she said she was injured.’

It was a clear, sunny morning.

With this evidence before it, the jury brought in its verdict in favor of defendant Ralphs Grocery Company. From the judgment which followed, plaintiff appeals.

It is here urged that the trial court committed prejudicial error in refusing to give to the jury certain instructions requested by appellant.

Specifically, it is asserted that the court having instructed the jury on assumption of risk and contributory negligence, appellant became entitled to a clear and explicit instruction that no one is required to assume the risk of a latent or obscure danger.

Among others, the court gave the following instruction: ‘If a danger is so apparent that a person can reasonably be expected to notice it and protect against it, the condition itself constitutes adequate warning, and if a person fails to heed such warning and is injured as a result thereof, he or she is guilty of contributory negligence.’

Also, the jury was instructed that appellant ‘was required to use ordinary care to avoid injury to herself, and this requires the exercise of ordinary care both to avoid dangers known to her and to discover dangers or conditions of danger to which she might become exposed.’

Having so instructed the jury, appellant claims that it was then mandatory upon the trial court to instruct further in the language of her proposed instructions 1 and 2, to-wit:

(1) ‘You are instructed as to the doctrine of assumption of risk that the law is, that while a person assumes the perils which are naturally incident to the position he has taken, he does not assume dangers which come only from the negligent act of another.’

(2) ‘Plaintiff was not negligent as a matter of law merely because she continued to walk on the sidewalk after knowledge that some danger existed. She can only be charged with negligence if you find as a fact that before she proceeded further she was aware of the amount of danger actually present.’

The rule of law applicable to this type of case is stated in Jones v. Bridges, 38 Cal.App.2d 341, 345, 101 P.2d 91, 93, quoting from Blodgett v. B. H. Dyas Co., 4 Cal.2d 511, 512, 50 P.2d 801: “The owner of property, in so far as an invitee is concerned, is not an insurer of safety, but must use reasonable care to keep his premises in a reasonably safe condition and give warning of latent or concealed perils. He is not liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care.”

However, ‘An invitee does not assume the risk of latent dangers which are created by the negligence of another and of which he has no notice. Oettinger v. Stewart, 24 Cal.2d 133, 139, 148 P.2d 19, 156 A.L.R. 1221; Hedding v. Pearson, 76 Cal.App.2d 481, 173 P.2d 382.’ Popejoy v. Hannon, 37 Cal.2d 159, 171, 231 P.2d 484, 491.

Appellant's case was tried on the theory that the negligence of respondent in permitting debris to remain in the water on the sidewalk was the proximate cause of her fall. As hereinbefore stated, there was evidence that the water was not clean, that although appellant looked, she saw no debris, but she did feel something slip under her foot. There was also evidence that the walk had been cleaned that morning, and that it was still damp after appellant fell but no debris was then found on the walk.

Thus, the issues of negligence, contributory negligence and assumption of risk became questions for the jury to decide under proper instructions.

‘The doctrine of assumption of risk is based on the theory that there has been a voluntary acceptance of a risk, and such acceptance, whether express or implied, requires knowledge and appreciation of the risk. See Rest., Torts, § 893; Prosser on Torts (1941), pp. 377–386; 10 So.Cal.L.Rev., 67, 74. Where the facts are such that the plaintiff must have had knowledge of the hazard, the situation is equivalent to actual knowledge, and there may be an assumption of risk; but where it merely appears that a person could or should have discovered the danger by the exercise of ordinary care, the defense is not assumption of risk but contributory negligence. See Prosser on Torts (1941), pp. 379–380, 400.’ Hayes v. Richfield Oil Corp., 38 Cal.2d 375, 384, 240 P.2d 580, 585.

Apropos is the following language in Hedding v. Pearson, 76 Cal.App.2d 481, 486, 173 P.2d 382, 385: ‘If any instructions were to be given in this case on the subject of assumed risk, they should have further included a proviso that, while a person assumes the perils which are naturally incident to the position he has taken, he does not assume dangers which can come only from the negligent acts of another. Muskin v. Gerun, 1941, 46 Cal.App.2d 404, 410, 116 P.2d 105; 19 Cal.Jur. 589, sec. 30.’

Moreover, a ‘litigant requesting it is entitled to proper instructions presenting his theory of the case, based on the pleadings and proofs.’ 24 Cal.Jur. 826, sec. 92 and the authorities there cited. See, also, McGowan v. City of Los Angeles, 100 Cal.App.2d 386, 395, 223 P.2d 862, 21 A.L.R.2d 1206; Clement v. State Reclamation Board, 35 Cal.2d 628, 643, 220 P.2d 897.

In the circumstances, the jury should have been instructed that appellant did not assume the risk of latent dangers created by the negligence of another in the absence of notice. Popejoy v. Hannon, supra, 37 Cal.2d 159, 171, 231 P.2d 484.

Had the jury received the instructions proposed by appellant it might have reached a different conclusion. Hence, failure to give them was prejudicial.

Because of the conclusions reached herein, it is not deemed expedient to consider the remaining points raised by appellant on this appeal.

For the reasons stated, the judgment is reversed.

I dissent. In urging error upon the part of the trial court in failing to give the instruction designated number (1) in the majority opinion, appellant evidently contends that the trial court failed to admonish the jury that a person is not negligent in failing to anticipate injury which can come to him only from the negligent act of another. This contention is unavailing because the court did instruct the jury as follows:

‘A person who, himself, is exercising ordinary care, has a right to assume that others, too, will perform their duty under the law, and he has a further right to rely and act on that assumption. Thus it is not negligence for such a person to fail to anticipate injury which can come to him only from a violation of law or duty by another * * *.’

Instruction number (2), as set forth in the majority opinion, was, in my opinion, properly refused because it is an incorrect statement of the law. It would have advised the jury that appellant could be charged with negligence only if it be found, ‘that before she proceeded further she was aware of the amount of danger actually present.’ (Emphasis added.)

This instruction would wrongfully limit the consideration of the jury to such evidence only as tends to show what actual knowledge of the sidewalk danger appellant had at the time of the accident. Negligence may be predicated upon proof that appellant failed to exercise that degree of vigilance and use of her faculties, which and ordinary, prudent person would have done under similar circumstances, even though it also appears that appellant had no actual knowledge of the danger. One is bound to exercise ordinary care to anticipate danger. Soda v. Marriott, 118 Cal.App. 635, 640, 5 P.2d 675.

An examination of the record herein reflects that the court fully, fairly and correctly instructed the jury on all the issues presented by the pleadings or raised by the evidence.

I would affirm the judgment.

DRAPEAU, Justice.

DORAN, J., concurs.