BURDETTE v. Rollefson Construction Company, a corporation, and Herbert Hischemoeller, Respondents.*

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

Dorothy M. BURDETTE and P. T. Burdette, Plaintiffs and Appellants, v. ROLLEFSON CONSTRUCTION COMPANY, a corporation, Herbert Hischemoeller, et al., Defendants and Respondents, Rollefson Construction Company, a corporation, and Herbert Hischemoeller, Respondents.*

Civ. 23286.

Decided: February 17, 1959

Joseph Schecter, Los Angeles, for appellants. Milton M. Cohen, Patti Sacks Karger, Los Angeles, for respondent, Hischemoeller. Crider, Tilson & Ruppe, Henry E. Kappler, Los Angeles, for respondent, Rollefson Construction Company, a corporation.

Plaintiffs, Dorothy Burdette and her husband, appeal from the judgment for defendants, Hischemoeller and Rollefson Construction Company, in their action seeking damages for injuries to the person of Dorothy, who fell onto the public sidewalk from some point between the top of the first ten steps from the public sidewalk and the door of her apartment.

The following is a fair epitome of the facts pertinent to the issues raised herein.

Defendant Hischemoeller was the owner of the lot in the city of Los Angeles designated as 11305 Biona Drive. He and defendant Rollefson Construction Company, hereinafter for convenience called Rollefson, agreed that Rollefson was to erect a six-unit apartment building on said property and that Rollefson was to participate either in the profit from a sale of the property or in the income from rentals. When the apartment building was nearing completion, ‘Apt. No. 2’ was leased to plaintiffs for a years' occupancy beginning October 1, 1956, the date upon which plaintiffs moved in.

At the times mentioned, the following ordinances of the City of Los Angeles were in force:

‘Section 91.0315. (a) Certificate Required. In order to safeguard life and limb, health, property, and public welfare, every building or structure shall conform to the construction requirements for the Subgroup Occupancy to be housed therein, or for the use to which the structure is to be put, as specified * * *.

‘No building or structure or portion thereof shall be used or occupied until a Certificate of Occupancy has been issued therefor.’

‘Section 91.3305, Subsection (g). * * * Every exterior stairway shall have a handrail on the outer edge. Stairways more than four feet (4′) in width shall be provided with handrails on each side.’

‘Section 91.4404. (a) Guard Rails Required. Where a floor, roof or deck is accessible from a stairway or doorway and the floor, roof or deck is more than four feet (4′) above the adjoining ground or floor level, a protective guard rail shall be provided in such a manner as to separate completely the doorway from the edge of the floor, roof or deck and also enclose all traffic lanes and all equipment requiring periodic servicing.’

Before October 1st, the City Building Department inspected the premises and required that ‘cement work’ be ‘redone on the steps and platform’. Up to October 10th, the date of plaintiff Dorothy's fall, no certificate of occupancy had been issued and no railing had been installed although one had been promised and contracted for.

The record on the instant appeal includes an agreed statement, in which it is said that ‘the manner in which the case was decided and determined is set forth fully in the Findings of Fact and Conclusions of Law of the Court’.

A paragraph of the complaint found to be true states: ‘That the only means of access to, or egress from, said apartment dwelling for the guests and tenants therein is by means of a flight of stairs leading from the ground in front of said building to a platform in front of said apartment dwelling.’

The following is quoted from the Agreed Statement: ‘Apartment #2 was reached by a private sidewalk adjacent to the building, extending for some 30 to 40 feet to a set of 4 steps leading up to a platform, which platform was immediately outside the door of Apartment #2. This was the only means of ingress and egress to said apartment. The platform was approximately 32 inches above the ground or sidewalk level. The platform, the steps and the sidewalk, which extended 30 to 40 feet, all faced and were immediately contiguous to the front yard of the building, which front yard sloped down to the public sidewalk for a distance of approximately 15 to 18 feet.’

The trial court found that defendants' failure to supply a guardrail in front of Apartment No. 2 was a violation of the Los Angeles City Building Code; that defendants knew or should have known that the guardrail was missing and ‘that the absence of such handrails was a dangerous and hazardous condition’.

It was found untrue that the absence of such handrail caused plaintiff Dorothy ‘to be catapulted or thrown down the decline of rough terrain against the sidewalk; or to sustain serious injuries'; that it was untrue that ‘the presence of any dangerous or hazardous condition for which defendants, or either of them, were responsible or accountable, was the direct or proximate cause of any fall or other incident which caused injury to the plaintiff’; that it is untrue that plaintiff sustained personal injuries ‘as a direct or proximate result of any careless or reckless or negligent or other conduct of the defendants, or either of them, or of their agents or servants or employees'; that it is untrue that plaintiffs' damage was ‘a direct and proximate result of the violation of any Los Angeles Municipal Ordinance as pleaded * * *.’

The court further found that while the absence of guardrails ‘was open, obvious and apparent to the plaintiff’, she did not assume the risk, her injuries were not ‘directly or proximately caused or contributed to by any negligence on the part of the plaintiff’, and that her injuries were not ‘the result of inevitable or unavoidable accident’.

From the agreed statement it appears that plaintiff Dorothy testified that on the evening of October 10, 1956, her friend Louise Green visited her. She opened the only outside door of her apartment and held it for her friend to precede her. She followed her friend outside, turned and pulled the door shut, and the next thing she knew she had been badly injured and was back inside her apartment. Her friend Louise Green testified that she preceded Dorothy out the door, across the platform, down the four steps, and about 30 feet along the private walk; that she ‘heard someone crying, and then looked down and saw the plaintiff down on the public sidewalk’ behind her; that she did not know how plaintiff Dorothy ‘got to the sidewalk’.

The agreed statement is further quoted: ‘There is no testimony in the entire record showing how plaintiff, Dorothy Burdette, got to the public sidewalk; there is no testimony or evidence in the entire record to show from what point plaintiff, Dorothy Burdette, left the upper or ground level of the apartment house, i. e., whether she left the upper level from the platform, from the steps, or from the private sidewalk, all of which abutted the sloping front yard; there is no testimony or evidence in the entire record tending to show at what place on the lower or public sidewalk the plaintiff was found; plaintiff's friend, Louise Green, was the only party who testified that plaintiff was on the public sidewalk, and she stated that she did not observe or remember whether plaintiff was in line with the platform, the steps, or the private sidewalk which abutted the top of the slope, there is no evidence in the entire record showing or tending to show the cause of plaintiff's injuries.’

It is not questioned on appeal that plaintiff Dorothy was seriously injured, and that her injuries included not only broken bones but deep lacerations containing soil.

From appellants' opening brief, the following description of the ‘only means of ingress and egress to Apartment #2’ is quoted: ‘A flight of about 10 conventional size steps ascended from the public sidewalk upon the face of the steep declivity atop which rested the apartment house, the stairway then making an exact right-angle turn and continuing adjacent to the apartment building with one long setp about 30–40 feet in length, which said long step is referred to in the Agreed Statement as the private sidewalk, said stairway then ascending by four conventional steps up to the platform immediately outside the door of appellants' apartment.’

A careful reading of the record and the briefs on appeal indicates that defendants' failure to provide a guardrail at the edge of the small platform just outside plaintiffs' door and along the outside edge of the four steps from the platform to the ‘private sidewalk’ or ‘long step’ (30 to 40 feet) adjacent to the wall of Apartment No. 2 was found by the court to have been a violation of the ordinance and negligence as a matter of law, and also to have created a hazardous and dangerous condition known to defendants; but, because from the evidence plaintiff Dorothy may have fallen from the 30 to 40 feet of private sidewalk, as to which there is no such finding, the court ‘found’ that Dorothy's injuries were not a proximate result of any negligence on the part of defendants.

As stated by respondent Rollefson, in its brief, the agreed statement is obviously defective. We have therefore augmented the record by including therein the original, first and second amended complaints, paragraphs of which are referred to by number in the Findings and Conclusions, the exhibits, the pretrial statement and the pretrial order, copies of which are appended to said respondents' brief. Rule 12; Alkus v. Johnson-Pacific Co., 80 Cal.App.2d 1, 9, 181 P.2d 72; Kuhn v. Ferry and Hensler, 87 Cal.App.2d 812, 815, 197 P.2d 792.

Respondent Hischemoeller, in his brief, states that since it is stipulated in the agreed statement that ‘there is no evidence in the entire record showing or tending to show the cause of plaintiff's injuries', appellants' claim that, as a matter of law, defendants' negligence was the proximate cause of plaintiff Dorothy's injuries has been settled by agreement and the instant appeal is frivolous. This court is not convinced that it was the intention of the parties, by such Agreed Statement, to settle the question raised on appeal.

Said respondent Hischemoeller quotes from the agreed statement the description of the premises where the ‘front yard sloped down to the public sidewalk for a distance of approximately 15 to 18 feet’, and ‘comments' that appellants have changed their theory of the case on appeal and are for the first time contending that the 30 to 40 foot ‘private sidewalk’ is a part of the stairway and required by said ordinances to have a guardrail along its outside edge. This ‘comment’ of said respondent is not borne out by the record, wherein as heretofore stated the agreed statement refers to the Findings of Fact, in which plaintiffs' allegation that the only means of access to said apartment is a ‘flight of stairs leading from the ground in front of said building to a platform in front of said apartment dwelling’ is found to be true.

The photographic exhibits show, from various angles, said stairway, or two stairways and private sidewalk, and the ‘sloping front yard’. Webster's New International Dictionary states that slopes may be and are of differing degrees as follows: gentle 3 to 8 degrees; moderate 8 to 16 degrees; steep 16 to 26 degrees; very steep 26 to 45 degrees; and precipitous over 45 degrees. The photographic exhibits in the instant action show the passage way between the public sidewalk and the door of Apartment #2 consists of ten steps leaving the public sidewalk at right angles, a walkway, four more steps and a small platform leaving the top of said ten steps at right angles and continuing along the edge of the ‘sloping front yard’. The walkway is narrow and abuts the apartment house wall on the other side. The slope of said ‘front yard’ varies only from ‘very steep’ to ‘precipitous'.

We are not impressed by plaintiff-appellants' claim on appeal that said 30 to 40 foot walkway is one step between the ten steps and the four steps herein described binding them together into one long stairway requiring a protective guardrail. That would be contrary to the rule that words of an ordinance are used in their usual and generally understood meanings.

Nor, considering the findings and the photographic evidence in the record on the instant appeal, can we accept as controlling the respondent's quotation from the agreed statement that ‘The platform was approximately 32 inches above the ground or sidewalk level’. The courts have knowledge that a ground or other level has no noticeable slope or inclination and that the upper edge of a very steep or precipitous slope is not properly referred to as ‘the ground or sidewalk level’.

The nearest level ground in front of said Apartment No. 2 is the public sidewalk, which can be reached, according to all briefs on appeal, by descending two flights of stairs numbering 14 steps in all. The narrow 30 to 40 foot private walkway abutting the apartment house wall on one side and abutting or overhanging the very steep or precipitous slope on the other side, for all practical purposes is a ‘floor’ or ‘deck’ more than four feet (and about 9 to 12 feet) above the ground level. It is accessible from the doorway of said Apartment No. 2. Section 91.4404(a) of the Los Angeles Building Code requires that as to such a floor ‘a protective guard rail shall be provided in such a manner as to * * * enclose all traffic lanes'.

The trial court found that the ordinances pleaded and received in evidence were in force, and that defendants' failure to provide a protective guardrail along the outside of the small platform and the four steps was negligence which caused a dangerous and hazardous condition to exist just outside plaintiffs' door. There is no finding with respect to the presence or absence of negligence or danger or hazard because of defendants' failure to provide a handrail along the edge of said 30 to 40 foot narrow walkway, or ‘floor’, 9 to 12 feet above ground level and necessarily traversed by plaintiffs between the door of Apartment No. 2 and the public sidewalk. The record contains no fact which would justify its exclusion from the findings of such negligence and the resulting hazardous condition.

The record in the instant appeal is without conflict to the effect that plaintiff landed on a spot on the public sidewalk directly across said steep and precipitous ‘sloping front yard’ from either the small platform, the four steps, or the 30 to 40 feet of private walkway. No one saw her fall and no one saw her land. Her friend saw her at her own doorway and a few seconds later on the public sidewalk badly injured. There being no evidence as to the cause of plaintiff's fall, and plaintiff having testified that she has no recollection of any occurrence between the time when she was on the small platform pulling her apartment door shut, and the later time when she was again inside her apartment and had been injured, it must be presumed that she used due care for her own safety and that she did not jump or purposely step off into space. That presumption supports the court's finding that plaintiff Dorothy was not negligent. There is no evidence in the record which would have supported a finding that plaintiff had assumed the risk or that the accident was unavoidable.

There is no evidence that defendants' negligent failure to provide a guardrail as required by the Los Angeles Building Code caused plaintiff to fall. The absence of the guardrail could not have caused her to fall. Plaintiff's fall might have been occasioned by her fainting, falling in a fit, or even stepping on a banana peel thrown upon the walkway by some unknown third party. Nevertheless, if defendants had complied with the requirements of the Los Angeles Building Code enacted to safeguard plaintiff's life and limb, plaintiff's fall would have been shorter by from 9 to 12 feet and she would have contacted only a smooth cement surface instead of the rough terrain of the very steep and precipitous slope from the private walkway to the public sidewalk.

In Williams v. San Francisco & N. W. R. Co., 6 Cal.App. 715, 93 P. 122, decedent's horse was frightened by an engine operated without negligence. About a mile down the road and while the horse was still frightened and running the buggy collided with a wood pile negligently and unlawfully kept by defendant in the roadway. The collision killed the driver. Judgment for plaintiff was affirmed for the reason that the negligence in connection with the woodpile was the proximate cause of the collision, injuries and death.

Respondents cite and rely upon Puckhaber v. Southern Pacific Co., 132 Cal. 363, 64 P. 480, where judgment for plaintiff was reversed. There plaintiffs sought damages for the death of their son, whose body was found near defendant's sidetrack. The facts of the cited case are in no way similar to those being considered on the instant appeal. At page 365 of 132 Cal., at page 480 of 64 P., of the cited case, the court said: ‘While, as before suggested, it may not be presumed against deceased that he became drunken and slept upon the track, or deliberately stood upon the track in front of the backing engine, the laws of self-preservation denying any inference of such conduct upon his part, still, as is said in some of the cases, the deceased may have fallen insensible upon the track in a fit, and thus have been killed without fault upon his part * * *’ At page 366, of 132 Cal., at page 481 of 64 P., it is said: ‘In this case the jury were permitted to presume negligence on the part of the defendant, then to presume that deceased was lawfully on the railroad track, and then to still further presume that defendant's negligence caused his death * * * A presumption must be based on a fact or facts, not on a presumption.’

Respondent Rollefson, in its brief, states that ‘proximate cause may be established by substantial evidence and cannot rest on guess, surmise or conjecture’, citing the following cases in support of that position.

Chapman v. Title Ins. & Trust Co., 68 Cal.App.2d 745, at page 748, 158 P.2d 42, at page 43, wherein, it is said: ‘The entire evidence leaves no doubt that plaintiff's own negligence caused or contributed to cause her injuries'.

Blodgett v. B. H. Dyas Co., 4 Cal.2d 511, 50 P.2d 801, which also turned upon plaintiff's contributory negligence.

McKellar v. Pendergast, 68 Cal.App.2d 485, 156 P.2d 950; Delk v. Mobilhomes, Inc., 118 Cal.App.2d 529, 258 P.2d 75; Reese v. Smith, 9 Cal.2d 324, 70 P.2d 933; and Greene v. A. T. & S. F. Ry. Co., 120 Cal.App.2d 135, 260 P.2d 834, 40 A.L.R.2d 873, in none of which was there any evidence of negligence on the part of the defendant.

Holmes v. Moesser, 120 Cal.App.2d 612, 262 P.2d 27, 29, wherein judgment for defendant upon a directed verdict was affirmed. Plaintiff fell ‘when her left foot slipped’ from the second step above the landing. At page 615, of 120 Cal.App.2d, at page 29 of 262 P.2d, the court quotes the following from the Blodgett case, supra: ‘The evidence shows that the lack of the handrail was neither the proximate nor any cause of plaintiff's fall. Any violation of the ordinance by the defendant would therefore be immaterial.’

Respondent Rollefson further relies upon the rule stated in its brief as follows: ‘* * * Whether the violation of an ordinance is the proximate cause of an injury is a question of fact for the trier of facts'. In this connection, he cites:

Nunneley v. Edgar Hotel, 36 Cal.2d 493, 498, 225 P.2d 497, wherein judgment for plaintiff was affirmed. Plaintiff was a visitor in a hotel; she accompanied her friend, who was a guest of the hotel, onto the roof and attempted to sit on a mattress which had been placed across the entire top opening of a vent. The parapet of the vent was four inches lower than required by the State Housing Act. At page 498, of 36 Cal.2d, at page 500 of 225 P.2d, Mr. Justice Edmonds, speaking for the court, said: ‘The manifest intention of the Legislature in specifying a minimum height of 30 inches for the parapet of every vent shaft in the roof of an apartment house or hotel was to protect a person lawfully upon the premises from walking or stumbling into the opening’. It was held that plaintiff's accident was not of the type to prevent which the statute had been enacted. The judgment in her favor was affirmed because of other general negligence.

In the instant action, plaintiff's accident was just the kind of mishap, from which the Los Angeles Building Code sought to protect the tenants of apartment houses.

Failure to perform a duty is the proximate cause of any injury which could not have happened if such duty had been performed. (38 Am.Jur. 701.)

In Hale v. Depaoli, 33 Cal.2d 228, 231, 201 P.2d 1, 3, 13 A.L.R.2d 183, a child fell through a rotten railing and judgment for defendant after nonsuit was reversed. The court said: ‘The purpose of the railing was to prevent one using the porch from stepping or falling from it. A structural defect in this protection would be ‘reasonably certain to place life and limb in peril’ * * *'

It has been repeatedly held that the issue of proximate cause is a question of fact to be decided by the trier of the facts, rather than a conclusion of law to be made by the court, either in a jury trial or on appeal. However, ‘the line of demarkation between what are questions of fact and conclusions of law is not one easy to be drawn in all cases * * *’ Levins v. Rovegno, 71 Cal. 273, 275, 278, 12 P. 161, 162; Robinson v. Raquet, 1 Cal.App.2d 533, 541, 36 P.2d 821. Where the negligence continues and exists up to the time of the injury and the damage incurred is one of the hazards against which it is defendant's duty to provide a safeguard, there is no room for a difference of opinion and the negligent failure to provide such safeguard is a cause of the accident as a matter of law. Hession v. City & County of San Francisco, 122 Cal.App.2d 592, 603, 265 P.2d 542.

In the instant action, if the traffic lane along the edge of the very steep or precipitous slope 9 to 12 feet above sidewalk or ground level, which was the only means of access to Apartment No. 2, had been provided with guardrails as required by the Los Angeles Building Code, Dorothy could not have tumbled down the rough slope or landed upon the sidewalk below. It is true that no one actually saw her fall from the walkway onto the rough terrain of the slope across a line where the guardrail should have been. The law does not require demonstration or absolute certainty, which is rarely found. The inference that plaintiff Dorothy did so fall from the walkway, steps, or platform, across the line where the guardrail should have been, down the precipitous slope is the only one which could reasonably be drawn from the undisputed facts. Thus the question of proximate cause becomes one of law. Gallichotte v. California Mut. Building & Loan Ass'n, 4 Cal.App.2d 503, 508, 41 P.2d 349; Traylen v. Citraro, 112 Cal.App. 172, 175, 297 P. 649; Stasulat v. Pacific Gas & Elec. Co., 8 Cal.2d 631, 638, 67 P.2d 678.

Spencer v. Beatty Safway Scaffold Co., 141 Cal.App.2d 875, 297 P.2d 746, is cited and relied upon by all parties to the instant appeal. There judgment for defendant, notwithstanding the verdict for plaintiff, was affirmed on appeal. The instant action is distinguishable from the Spencer case, supra, in which the injured plaintiff, a gymnasium instructor, climbed onto an apparatus not intnended to hold his weight and fell from it. In the instant action, there is no evidence that plaintiff Dorothy did anything except to start along the traffic lane provided by her landlords, the defendants, as the only means of exit to be used from Apartment No. 2. Had there been handrails as required along the edge of the very steep and precipitous slope, plaintiff Dorothy, regardless of the cause of her fall, could not have landed on the public sidewalk below. It is a matter of common knowledge that persons often fall to the level of their own feet without being injured at all, and that almost never does a person fall to a point 9 to 12 feet lower without injury.

The judgment is reversed.

WHITE, Presiding Justice.

FOURT and LILLIE, JJ., concur.

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