DECKER v. KRESS COMPANY (1959)

District Court of Appeal, First District, Division 2, California.

Kurtz A. DECKER, Plaintiff and Respondent, v. S. H. KRESS COMPANY et al., Defendants and Appellants.

No. 18042.

Decided: April 03, 1959

O'Connor, Moran, Cohn & Hall, San Francisco, for appellant. Allan L. Sapiro, Bergen Van Brunt, San Francisco, for respondent Decker. Boyd & Taylor, San Francisco, for respondent Pacific Indemnity Co.

On petition for rehearing it is pointed out that while on his deposition respondent testified that he unplugged and plugged in the cord, on the trial he denied having done so. Since the evidence on appeal must be construed most favorably to respondent the references in the opinion to respondent having plugged in the cord were improper. We do not regard this fact as vital to our decision, which was based on the obviousness of whatever danger inhered in the cord lying openly on the floor and the ease with which respondent could have obviated this plainly visible condition when the loudspeaker was not in use.

The petition for rehearing is denied.

PER CURIAM.

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