OETTINGER v. STEWART ET UX (1943)

Plaintiff appeals from a judgment, entered upon a verdict, in favor of defendants in an action to recover damages for personal injuries.

Plaintiff contends that the trial court erred prejudicially in giving certain instructions, and in refusing to give other instructions requested by plaintiff.

Defendants, husband and wife, were owners and managers of an apartment building in Santa Monica. A small cement porch was at the front entrance to the building. There were four cement steps descending from the porch to the sidewalk on the premises. The first apartment in the building, approximately 12 feet from the front door, was occupied by defendants as living quarters and was used by them as the office of the building. The word “Office” was on the wall just above the doorbell next to the entrance door to defendants' apartment. On July 10, 1940, the day of the accident, between 2 and 3 p. m., plaintiff, who was 71 years of age, went to the apartment building to inquire whether there was an apartment for rent.

Since defendant May Stewart was the defendant involved in the actual happening of the accident, she will be referred to hereinafter as the defendant. Plaintiff and defendant were the only persons present when the accident occurred.

Plaintiff testified that she entered the apartment building through the front door, and rang the bell at the door of the office; that defendant opened the door, asked plaintiff to come in, and plaintiff went into the apartment and sat down, and told defendant she was looking for a single apartment; that defendant told her she had no vacant single apartment; that plaintiff then told defendant where she was living and why she was moving; that plaintiff stayed about 10 minutes and, when she arose to leave, defendant opened the door into the main hallway and followed plaintiff onto the porch; that plaintiff descended the steps from the porch to the sidewalk and started away, and then defendant who was on the porch said she would have a vacancy in August; that plaintiff then turned around, stood almost directly in front of the lower step and said that would not do because her rent was up on July 18th and she wanted to move before that time; that defendant was then standing in front of plaintiff on the “very edge of the porch”; that defendant “looked up” and “started forward and the heel of her left foot caught,” and instantly she fell upon plaintiff (the deposition of plaintiff stated that defendant walked to the edge of the porch and then started to step down and caught her heel); that as defendant fell she threw up her arms, struck plaintiff and knocked her down upon the public sidewalk (that sidewalk was about 2 feet from the bottom step of the porch); and that plaintiff didn't move while defendant was falling.

Defendant testified that, in response to the ringing of the doorbell by plaintiff, she opened the door and that plaintiff, whom she had never seen before, inquired whether defendant had a vacant apartment; that defendant replied that she did not have but might have one in the fall; that plaintiff then said she would have to sit down a minute, that she had had lunch at Sheetz' and felt “kind of sick”; that the door to defendant's apartment was open and plaintiff entered and sat on the chair nearest the door; that plaintiff and defendant “sat and visited,” and plaintiff stated she wanted a single apartment, and had called at the apartment building across the street; that nothing further was mentioned about a vacancy at the apartment house of defendant; that when plaintiff arose to leave, defendant preceded her and opened the door into the main hall and also went with plaintiff to the front door of the building and opened it; that defendant then followed plaintiff onto the porch and plaintiff went to the bottom of the steps; that defendant went to the top of the steps, the very edge of the porch; that they engaged in casual conversation; that defendant looked up at the sky, remarked about the beautiful sky and day, and gave some parting greeting; that she lost her balance and fell forward; that defendant did not know what happened and had no forewarning of a sinking spell; that she did not know whether she fainted; that she did not catch her heel or stub her toe and did not start to walk down the steps; that she just sank down and started sliding and “flying” down the steps; that she tried to stop herself and went down on her left knee to avoid striking plaintiff, but she “must have brushed against her,” and plaintiff seemed to “crumble down”; and that plaintiff “just stood there” while defendant was falling.

Plaintiff testified in rebuttal that she may have told defendant she ate at Sheetz' restaurant, but she did not tell defendant that something had “disagreed” with her, and plaintiff did not say she would like to sit down and rest. (Plaintiff's deposition, which was received in evidence, stated in part that plaintiff did not know what she and defendant talked about after she learned there were no vacancies, “just trifles” but nothing she remembered.)

(1) An instruction given by the court included the following: “An invitee who enters upon portions of the premises where she has no right to enter becomes a licensee and the only duty to her then is to refrain from wilful or wanton injury.” Another given instruction related to the status and rights of a trespasser and the duty of a landowner toward a trespasser. Plaintiff contends that those instructions were prejudicial for the reason there was no testimony that plaintiff went upon any portion of the premises where she had no right to go as an invitee. There was testimony on behalf of defendants that plaintiff's inquiry concerning a vacancy was answered at the door of defendant's office before plaintiff entered the office, and that plaintiff entered the office thereafter without invitation and for the purpose of resting. There was testimony on behalf of plaintiff that the conversation concerning a vacancy occurred after she had entered the office upon express invitation by defendants. One of defendants' contentions at the trial was that plaintiff's status as an invitee ended at the door of defendants' office when she was told there was no vacancy, and that thereafter she was a licensee. There is no dispute about the facts that defendants were engaged in the business of renting apartments and that they displayed signs visible to the public, indicating that business. This constituted an invitation to persons looking for apartments to rent, as was plaintiff, to enter and make inquiry. Plaintiff's status when she made such entry was therefore that of an invitee. Even if she deviated from the invitation, as defendant contends, by going into defendant's own apartment and sitting down there after she had been told that defendant had no vacant apartments, the invitation to enter included an invitation for plaintiff's departure from the building. The accident occurred during such departure, not during the deviation, if any, and plaintiff was an invitee when the accident happened. Moreover, it was immaterial whether plaintiff was an invitee or licensee when the accident occurred. The degree of care owed to an invitee is ordinary care. If a licensee's presence on the premises is known to the owner, the defendant owner owes the licensee the duty to exercise ordinary care to avoid injury to him through active negligence. It was clear and undisputed that plaintiff was in defendant's presence all of the time plaintiff was on the premises after plaintiff rang defendant's door bell. The instruction to the effect that the only duty which is owed to a licensee by an owner of premises is to refrain from wilful or wanton injury was a statement of a general rule which applies to cases relating to the duty owed to a licensee with respect to the condition of premises––that is to cases involving passive negligence as distinguished from active negligence. There was no contention herein that the injury resulted by reason of the condition of the premises or that passive negligence was involved.

Whether plaintiff was an invitee or a licensee the duty owed by defendant to plaintiff, under such circumstances, was to exercise ordinary care to avoid injury to plaintiff. The evidence did not justify any reference to a duty to refrain from wilful or wanton injury, and the instruction that the only duty which is owed a licensee is to refrain from wilful or wanton injury and the instruction relative to the duty owed to a trespasser were inapplicable to the case, tended to confuse the issues, and were prejudicially erroneous. The confusion caused by, and the prejudicial effect of, those instructions were not removed by a given instruction to the effect that when a licensee's presence on the premises is known to the licensor, the licensor is bound to exercise ordinary care to avoid injuring the licensee by any overt act.

(2) Plaintiff objects to a given instruction relative to unavoidable accident, and asserts there was no basis in the evidence for submitting to the jury the question whether the injury “occurred without having been proximately caused by negligence.” Unavoidable accident was alleged as a defense. It was not error to give the instruction.

(3) Plaintiff also objects to an instruction as to imminent peril which was given. The contention is that the instruction, although a correct statement of the law, was not applicable to this case because there was no evidence upon which the jury could have found that defendant Mrs. Stewart was “suddenly confronted with unexpected and imminent danger” when she, herself, was without negligence. Defendants state that the instruction was not given at their request, but was requested by plaintiff and was for plaintiff's benefit in that it furnished the jury a probable explanation of plaintiff's failure to make an effort to avoid the injury. There was no indorsement upon the instruction to indicate whether it was requested by plaintiff or defendant or whether it was given or refused. It appears from the briefs that the parties agree that the instruction was given. The instruction does not refer specifically to defendants or to plaintiff, but refers generally to “A person who, without negligence on his part, is suddenly confronted with danger * * *.” Irrespective of whether defendant was such a person as described in that instruction, if plaintiff was such a person the instruction was applicable to the case. Plaintiff does not contend that plaintiff was not such a person. It was not error to give the instruction.

(4) The court gave an instruction that if the plaintiff voluntarily placed herself in a position of danger, or if she failed to remove herself from a position of danger, if by the exercise of ordinary care she could have removed herself, then she must assume the risk of injury ordinarily incident to such position. Plaintiff asserts there was no evidence to support a defense that plaintiff voluntarily placed herself in a position of danger or to support a defense of assumption of risk and that the instruction should not have been given. Whether a position is one of danger is not to be determined by subsequent events, but by the situation reasonably apparent to the person whose conduct is in question when he takes or remains in the position. There is nothing about the position of a person who stands at the bottom of a four step flight of stairs conversing with another person at the top, which, with nothing more, should cause the person at the bottom, in the exercise of ordinary care, to regard the position as one of danger. That instruction should not have been given.

(5) Plaintiff contends that certain given instructions were conflicting and prejudicial. One of the instructions so referred to was: “The mere fact that an accident happened, considered alone, does not support an inference that some party, or any party, to this action was negligent.” Another instruction referred to in such contention was in part: “From the happening of the accident involved in this case, as established by the evidence, there arises an inference that the proximate cause of the occurrence was some negligent conduct on the part of the defendant.” A further instruction so referred to was in part: “Lest these statements give you an incorrect understanding of the law generally, I would inform you that they constitute an exception to the general rule that the mere happening of an accident does not support an inference of negligence. However, certain exceptional circumstances, when existent, authorize the exceptional rule * * *. [Here various circumstances are stated.] When the conditions I have mentioned exist, the inference of negligence, to which they give birth, will support a verdict for the plaintiff, in the absence of a showing by defendant that offsets the inference.” In discussing these three instructions they will be referred to as first, second, and third instructions respectively.

It is true that the mere fact that an accident happened, when considered alone, does not support an inference of negligence (White v. Spreckels, 1909, 10 Cal.App. 287, 294, 101 P. 920); however, the first of the three instructions just referred to was not limited to such a general statement but specifically stated that such happening would not “support an inference that some party, or any party, to this action was negligent.” (Italics added.) The second instruction referred to stated in effect that the mere happening of the accident does support an inference of negligence on the part of defendant. It is to be noted that the third instruction included a statement to the effect that the provisions of the second instruction constituted an exception to the general rule that the mere happening of an accident does not support an inference of negligence. The statement of the general rule in the third instruction was limited to a general statement applying to an accident in general and did not specifically refer to the present action or any party thereto. The general rule as stated in the third instruction and the exception to the rule as therein stated were not in conflict. The first instruction that the “mere fact that an accident happened * * * does not support an inference that some party * * * to this action was negligent,” and the second instruction that, “From the happening of the accident involved in this case * * * there arises an inference that the proximate cause * * * was * * * some negligent conduct on the part of the defendant,” were conflicting, confusing, and prejudicial. See England v. Hospital of Good Samaritan, 1937, 22 Cal.App.2d 226, 230, 70 P.2d 692. The second instruction correctly applied the rule of res ipsa loquitur to the facts of plaintiff's case. While plaintiff was standing still upon the sidewalk at the foot of the steps, defendant May Stewart fell down the steps and upon plaintiff. The movements of said defendant immediately preceding her fall were not caused, influenced, or interfered with by the action of any other person, force, or agency.

The court gave the following instruction: “If, after considering all of the evidence, you find that the accident might have been caused in several different ways, and you further cannot determine what was the proximate cause of the accident which caused plaintiff's injuries, then your verdict must be for the defendants.” This instruction placed upon plaintiff the duty of proving the cause of defendant's falling, and directed a finding in favor of defendants even in the event that defendant May Stewart failed to explain or excuse her actions. It nullified the instruction on res ipsa loquitur and was prejudicially erroneous.

It is not necessary to discuss other given instructions which appellant asserts were erroneous or to discuss her contentions relative to the refusal to give instructions requested by her.

The judgment is reversed.

PARKER WOOD, Justice.

SHINN, Acting P. J., and SHAW, J. pro tem., concur.