187 P. 767 | Cal. Ct. App. | 1919
The respective appellants operated, and delivered meat to a cafeteria in Los Angeles. The respondent *379 was awarded a verdict of seven thousand five hundred dollars for personal injuries alleged to have been suffered through the concurrent negligence of the appellants, who prosecute separate appeals upon the same record. They are presented and considered together.
The opening brief of the Cafeteria Company was almost two years overdue. It was on file at the time of the oral argument and the respondent was given an opportunity to reply to it. It is contended that that appeal should not be considered. While rules of court designed to facilitate its business may never be disregarded with safety, under the circumstances the present case will be determined on its merits. From an examination of the entire record, including the evidence, the conclusion has been reached that the judgment must be affirmed, upon the grounds stated in disposing of the specific contentions of the appellants.
Between noon and 12:15 P. M. the respondent was walking along one of the most congested thoroughfares in the city. On one step she placed her right foot on the still closed door of a sidewalk elevator, and on advancing her left foot it went into the hole caused by the opening of the other door. She fell to the basement and sustained injuries.
[1] It is contended the award of seven thousand five hundred dollars was excessive. It is conceded that actual damages of $1,580 were proved. At the time of the accident the respondent was twenty-eight years old, employed as a stenographer, at sixty-five dollars per month. She was confined to her bed in the hospital for four weeks and for a further period of four weeks at her home. She received a profound shock to her nervous system. There was a fracture of the pelvis, which had not completely united at the time of the trial, and there was surgical testimony to the effect that from four to sixteen months would thereafter elapse before there would be a complete knitting of the bone. The respondent was able to get about only by means of a wheel-chair, with assistance, or by taking hold of objects while walking about a room. It is possible that if it were the function of this court to assess damages a smaller award might have been made, but the amount is not so disproportionate to the injury proved as to justify the conclusion that the verdict is not the result of the exercise of cool and dispassionate discretion of the jury. (Redfield v.Oakland *380 etc. Co.,
[2] An instruction to the effect that one of the elements entering into the measure of damages was "such reasonable sum as the jury should award her on account of any physical pain or mental anxiety she may have suffered or may certainly suffer in the future by reason of her injury" was not erroneous. (Gumpel
v. San Diego etc. Ry. Co.,
Where, as in this case, it is claimed the injured person was guilty of contributory negligence, the question is generally one of fact, and the fundamental rules of law are so well known and have been so often repeated that little is gained by lengthy quotations and long lists of authorities. [3]
Pedestrians must use such caution as ordinarily prudent men exercise under similar circumstances. The law does not define or limit this ordinary care. [4] Negligence is not absolute, but is always relative to the particular circumstances on which it is sought to be predicated. It is only where reasonable men can draw but one conclusion that the determination of the jury upon the question may be disregarded. In a case somewhat akin to this, the man who was injured had but recently passed a closed sidewalk trap. On returning he was reading from a memorandum he held in his hand, and stepped into "a yawning chasm" which had been opened in the interim. It was contended that a motion for nonsuit should have been granted, but the supreme court reached the contrary conclusion. *381
(Van Praag v. Gale,
It is contended by each appellant that it was not guilty of negligence, and each attempts to shift the liability for the injuries to the other. The Cafeteria Company maintains the Newmarket Company was an independent contractor, and the Newmarket Company contends that under an ordinance excluded from evidence the sole responsibility for maintaining the elevator was placed on the Cafeteria Company as owner. Error in excluding the ordinance is claimed. The ordinance was offered by the plaintiff and excluded on the objection of the Cafeteria Company. Its admission was not urged by the Newmarket Company. If there was error in rejecting the evidence, it was against the respondent. On this appeal, even though such an error *382 caused by the objection of its codefendant were available for the Newmarket Company, it would not cause a reversal of the judgment. [6] Regardless of the ordinance, where the owner of property maintains a sidewalk elevator, he is liable for injuries to pedestrians caused by his negligence, either in the construction, maintenance, or the operation of the elevator under his direction, or with his knowledge and by his permission. Also, one who uses such an elevator is liable for the results of his own negligence.
The elevator doors were not operated automatically from below, but were raised by hand. Each door was heavy, weighing about 250 pounds. One man opening the elevator, therefore, had to stoop over one door and raise it, then walk around the shaft to repeat the operation with the other door, leaving one-half of the shaft as an open pitfall. The doors were not hinged to open across pedestrian movement and so to bar it, but so that when opened they were parallel to the building line. The elevator was maintained by the Cafeteria Company for the purposes of its business, and was used frequently, if not usually, for deliveries of its purchases to its basement storeroom. The delivery about to be made by the Newmarket Company was upon the order of the Cafeteria Company. The truck driver went first to the basement and talked with employees of the Cafeteria Company concerning the delivery. He then, alone, started to open the elevator doors. He testified that before doing so he looked up the street and saw no one within thirty feet of him, yet the respondent testified that when she was within ten or twelve feet of the elevator the doors were closed and that she did not see a man with a white apron, such as the truckman wore. The jury believed her. Under the rule that every reasonable inference is to be drawn in support of the verdict, it may be that the jury believed the construction of the doors to open in the way they did was negligent, and that permitting the use of the elevator with the knowledge of the servants of the Cafeteria Company, without its requiring one of its own employees to aid in the opening of the doors or, at least, to guard pedestrians from the peril, were acts of negligence concurring with that of the employee of the Newmarket Company in attempting in so busy a place and at so busy an hour alone to open the trap. [7] At the time *383
of the accident the elevator, with its doors, was under the joint management of both defendants, and the accident was such as in the ordinary course of things does not happen if those having the management and control of such an instrumentality use proper care. In such a case, in the absence of explanation by the defendants, the fact of the accident affords reasonable evidence of want of care. (Shearman Redfield on Negligence, par. 60; Bowley v. Mangrum Otter,
The landlord and tenant cases merely hold that, where there is no negligence in the construction of a device which the landlord delivers to the tenant of leased premises, the landlord is not responsible for the tenant's negligent operation. They have no real relationship to the facts of this case, which are more nearly akin to those where an owner has been held liable for injuries resulting from the construction of a pitfall by a contractor. (Barry v. Terkildsen,
The only remaining contentions are minor ones which are merged in the conclusions reached on the matters already discussed. As a whole, the instructions were clear and fairly stated the law. The evidence was sufficient to support the verdict, and no errors of law, if any there were, resulted in a miscarriage of justice.
The judgment is affirmed.
Langdon, P. J., and Nourse, J., concurred. *384
