PORTER v. MONTGOMERY WARD AND CO

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District Court of Appeal, Third District, California.

Norman R. PORTER and Betty M. Porter, Plaintiffs and Respondents, v. MONTGOMERY WARD AND CO., Inc., and T. S. Jackson, Defendants and Appellants.*

Civ. 8855.

Decided: January 17, 1957

Chenoweth & Leininger, Redding, for appellants. John Halpin, Jr., John A. Spann, Redding, for respondents.

This is an appeal by defendants from a judgment in favor of plaintiffs in an action brought to recover damages for personal injuries suffered by Mrs. Porter when she fell on a stairway in the defendant company's Red Bluff store.

Mrs. Porter, accompanied by her three-year-old son, was descending the stairway from the mezzanine to the main floor. There was a handrail on each side of the stairway, however the intermediate railing had been removed. As they walked down the steps Mrs. Porter held her son's left hand in her right hand, and he held the right hand rail with his right hand. Under her left arm she carried a small, eightby eleven-inch purse which had no handle. At either the third or fourth step from the bottom she slipped and fell, landing with her right leg extended in front of her and her left leg bent back and to one side. When she got up she was asked by a clerk if she wished to inform the manager of her fall. She replied that she did not; that she didn't believe she was hurt. After shopping for 20 or 25 minutes, Mrs. Porter requested the same clerk to call the manager. She then informed Mr. Jackson, the store manager, that she had slipped and fallen on a step and complained of pain in her knee and back. Mr. Jackson suggested that she see the defendant company's physician, giving her a standard form card on which he wrote her name, that of the doctor as well as his own and gave her directions to the doctor's office. While the manager was making out the card, Mrs. Porter inspected the step where she had slipped and found there a clear liquid which felt moist and looked like water. There was also a three- or four-inch-long black heel mark from her shoe on the step. She did not call the attention of the manager or any other of defendant company's employees to the spot on the step. Much of her testimony in this regard was contradicted by employees of the defendant company. At the bottom of the stairway, and immediately to the north or left-hand side, there was a drinking fountain. The fountain was of standard design, about three feet, five inches high and 15 inches square. From the third step up, the stairway was enclosed on both sides by a wall extending from the floor to the ceiling. Pursuant to a request of plaintiffs' counsel, two witnesses visited the store approximately seven and a half months after Mrs. Porter's accident. Both witnesses observed that there was moisture on the floor at the base of the drinking fountain, and that when a person drank from the fountain water went outside of the basin. One of these witnesses further testified that while he was observing customers who used the fountain, he saw one woman press the valve and water squirted out upon the floor. The store manager testified that the fountain was in the same condition on the day of the accident as it was when it was examined by the plaintiffs' witnesses; that he had never observed, nor had it been reported to him, that the fountain was splashing over; however he did state that he had noticed the dampness around the fountain when children played with it; that there was no step for children to stand on; and that he had noticed that small children, in order to gain the necessary height to drink from the fountain, would stand either on the first or second step of the stairway.

It is defendants' first contention that the evidence fails to disclose any negligence attributable to them in connection with Mrs. Porter's slipping on the stairs. It would appear, however, that from the summary of the facts disclosed by the record, the jury could infer that the wet spot on the stairway was either tracked from the floor at the base of the fountain, or that a child standing on the first or second step splashed water while drinking from the fountain, and thus the wet spot was the result of defendants' negligence, under either the theory that they failed to keep the fountain in proper repair, or that they were negligent in placing the fountain so near and adjacent to the stairway. Furthermore, the jury was entitled to find negligence from defendants' failure to maintain a center railing on the stairway in conformance with certain safety regulations which form the basis of defendants' second contention.

Defendants' argument in support of said contention is that the trial court erred in admitting into evidence, over their objection, a certain order of the Division of Industrial Safety relative to the maintenance of a railing on a stairway 88 inches or more in width, and the giving of an instruction embodying the same safety order. The order in question, number 3232, was issued in conformity with the provisions of sections 6312 and 6500 of the Labor Code. The instruction followed substantially the order in question and was in part as follows:

‘If a party to this action violated the rule just read to you, a presumption arises that he was negligent. This presumption is not a conclusive one. It may be over come by other evidence showing that under all the circumstances surrounding the event the conduct in question was excusable, justifiable and such as might reasonably have been expected from a person of ordinary prudence.’

It is defendants' argument that under sections 17 1/2 and, 21 of Article 20 of the California Constitution, the Legislature has been empowered to provide a system of compensation and protection for employees; that the Division of Industrial Safety has only the authority to make regulations affecting the relationship of the employer and employee; that any such regulation cannot affect third persons; and that Mrs. Porter being a member of the general public is not one of the class entitled to benefits from such order. It is further contended that the Legislature, by enacting sections 16400 and 16413 of the Health and Safety Code, providing for intermediate stair railings in apartment houses and hotels when a stairway exceeds 88 inches in width, conclusively showed that there is no connection between the legislative enactments convering the general public and the safety orders of the Division of Industrial Safety relating to industry and employer and employee exclusively.

Were this a question of first impression, the earnest argument of defendants' counsel would be much more persuasive. But it is not. Our reviewing courts, in several recent cases, have had the identical question presented, and in each instance have approved instructions comparable to the one given in the present case. In the case of Pierson v. Holly Sugar Corp., 1951, 107 Cal.App.2d 298, 237 P.2d 28; Supreme Court hearing denied, the party injured by the fall of an elevator was not an employee of the defendant but was a business invitee, the same as plaintiff Mrs. Porter in the present case. Defendant there contended, as do defendants in this case, that the court erred in giving instructions to the jury containing orders of the Division of Industrial Safety. In affirming the judgment for plaintiff the court held: ‘We conclude that the safety orders and the provisions of the Labor Code referred to were intended not only to protect employees of defendant corporation but also as safeguards for the public generally against injury or loss of life and that it was proper to instruct the jury as to such rules and regulations and provisions in the instant case.’ 107 Cal.App.2d at page 302, 237 P.2d at page 31. Thereafter in Armenta v. Churchill, 1954, 42 Cal.2d 448, 453, 267 P.2d 303, wherein a judgment of the trial court was reversed for failure to receive in evidence and include in its instructions to the jury certain construction safety orders, the Pierson case was cited with approval. In the later case of Nungaray v. Pleasant Valley, etc., Ass'n, 1956, 142 Cal.App.2d 653, 300 P.2d 285, again the contention was made that the constitutional authority only related to the employer-employee relationship and that any regulations made by the Division of Industrial Safety could not affect third persons. However the court held that the point was ‘untenable’ and in support thereof cited and relied upon the Pierson case. Lastly in Bragg v. Mobilhome Co., 1956, 145 Cal.App.2d 326, 302 P.2d 424, a similar contention was made, and although a judgment in favor of the plaintiff was reversed on other grounds, specific approval was given to a like instruction.

In view of the rule as now established in this State, the contentions of defendants cannot be sustained.

The judgment is affirmed.

PEEK, Justice.

VAN DYKE, P. J., and SCHOTTKY, J., concur.

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