107 Cal. 563 | Cal. | 1895
Action to recover damages for personal injuries. Plaintiff recovered a verdict, and from the judgment entered thereon and an order denying a new trial the defendant appeals.
Defendant, a corporation, is engaged in the leasing of buildings for business purposes and furnishing steam power in connection therewith. During the year 1891 William Davis, the father of the plaintiff, occupied, under lease from defendant, the basement and first floor of one of its buildings at No. 28 Jessie street, in the city of San Francisco. These premises were used by William Davis as a factory for the manufacture of horse-collars. The basement was an underground room, fifty-two by twenty-five feet. In one corner of this basement, where it fronts on Jessie street, there was a flight of stairs leading from the basement into Jessie street,
The contention of appellant is that upon the facts disclosed plaintiff is not entitled to recover, for the reasons: 1. That at the time of the accident defendant owed the plaintiff no duty which required it to protect him from the dangers of its shaft; and 2. That the evidence shows that plaintiff was guilty of contributory negligence proximately conducing to his injury. The first proposition is subdivided by counsel into several minor heads, each of which is elaborately presented in the briefs, but they all converge eventually in the general proposition, as stated above, that defendant owed the plaintiff no duty in the premises which can render it liable in damages.
It is argued that at the time of the accident the plaintiff was wandering over the premises of his employer, for his ow’n purposes or convenience, and not in pursuit of his employment, and away from where his duty called him; that while so engaged he was not on the stairway by right, but was a mere licensee, and that as such the defendant was under no obligation to guard him from injury. In the first place, this proposition rests upon the assumption of a right in the defendant itself to maintain its shaft upon the premises. The evidence upon this point is conflicting, that of plaintiff tending to show that defendant went upon the leased premises and erected the shaft without asking or receiving any permission from William Davis, the tenant, while the evidence on the part of the defendant is to the effect that, although defendant originally started in to erect the shaft without permission, William Davis afterwards assented thereto. In view of the fact, however, that the court below instructed the jury that, if defendant erected and maintained the shaft with the
It is said that William Davis, by failure to object to the erection and maintenance of the shaft, assumed for himself and his employees the risk of injury therefrom. But assuming this to be the law, the evidence shows that William Davis did, in effect, if not in terms, object to the introduction of the shaft. When he was informed that defendant was proceeding to erect the shaft, and was disturbing and interfering with his workmen in the basement, he went to its officers and inquired into their purposes. He was informed substantially that he ought not to object, but, if he did, it would make no difference; in other words, that the shaft had to go in. He was assured that he would never know it was there, either from the space it would occupy or the noise it would make; that defendant’s servants would go in every day and look after it, and he, Davis, should never be disturbed by it. This evidence, it is true, is denied by defendant, but the jury evidently believed and acted upon it. The shaft was admittedly put in and maintained solely for the use and benefit of the defendant, and was in no way connected with the business of, or used by, William Davis. It was, furthermore, wholly under the control and management of defendant, as was likewise the space that it occupied. Under such circumstances the tenant cannot be held to have assumed any of the risks incident to its maintenance. Where the landlord retains or has control of a portion of leased premises the responsibility rests with him to see that no injury results to those having rights there by reason of the manner in which such' portion of the premises is occupied or used; and, if he puts dangerous machinery thereon, it is his duty to fence it, or use other proper means to protect those rightly in its vicinity. These principles are thoroughly well settled. (2
On the question of contributory negligence we think the case was a proper one for the jury. It is only where the undisputed facts are such as to leave but one reasonable inference, and that of negligence, that the court is justified in taking the question from the jury. It is not enough that the evidence be without conflict. If, upon the facts disclosed, there is room for a reasonable deduction of proper care on the part of the person injured, the case is one for the jury, and the court is not justified in substituting its judgment for that of the jury, and withdrawing the question from their consideration. (Fernandes v. Sacramento City Ry. Co., 52 Cal. 45; Wharton on Negligence, sec. 420.) In Shierhold v. North Beach etc. R. R. Co., 40 Cal. 447, it is said: “ The fact of negligence is generally an inference from many facts and circumstances, all of which it is the province of the jury to find. It can very seldom happen that the question is so clear from doubt that the court can undertake to say, as matter of law, that the jury could not fairly and honestly find for the plaintiff. It is not the duty of the court in such cases, any more than in any other, to usurp the province of the jury and pass upon the facts; and the nonsuit should only be granted in such cases where the evidence of the misconduct on the part of the injured party is so clear and irresistible as to put the case on a par with those cases where a non-suit is granted for a failure to introduce evidence sufficient to go to the jury upon some point essential to the plaintiff’s case. The fact must be so clear that, looking upon the plaintiff’s case in the most favorable light and giving him the benefit of all controverted questions, the court can see that a verdict in his favor must necessarily be set aside.” (And see Van Praag v. Gale, ante, p. 438.) Tested by these principles, we cannot say the evidence clearly or necessarily discloses negligence on the part
There are no other points requiring special consideration. It was not error to permit the witness, Peterson, in illustration of his testimony with reference to the
The judgment and order are affirmed.
Garoutte, J., and Harrison, J., concurred.
Hearing in Bank denied.