This is аn appeal by defendant from a judgment, after verdict, in favor of plaintiffs in the amount of $3,500.
About 2:30 P. M. on July 18, 1938, plaintiffs, husband and wife, entered the restaurant of defendant, walked across a light colored terrazzo floor to stools located upon a black colored terrazzo platform which was 8 to 10 inches above thе floor level. Plaintiff Minnie Mae mounted the platform, oc6. *517 cupied a stool next to her husband, ordered and ate her lunch. While thus engaged in consuming her viands she оbserved a man enter from the kitchen and sweep the floor and platform. He retraced his steps to the kitchen, returned with bucket and mop and proceeded to mop the floor and platform where plaintiffs were seated. Mrs. Heehler finished her meal, turned her stool to the right and, with both feet on the platform, аttempted to rise. Before she could gain her equilibrium both feet slipped from beneath her and she fell, fracturing her right hip.
Appellant contends that (1) plaintiff was nеgligent as a matter of law in having full knowledge of the wet platform; (2) that it was not established that appellant failed to exercise that degree of care required of a public house for the protection of invitees; and (3) that the giving of certain erroneous instructions to the jury constituted prejudicial error.
(1) The jury wаs warranted by the evidence in finding that Mrs. Heehler was not negligent. She never testified that she knew the floor was wet at the time she fell. She knew the janitor had mopped the floor while she ate, but there is no positive proof that she knew it was wet as she began to arise. That it was wet, that of its wetness she was unconscious, that defendant was negligent in not warning her, and that such negligence was the sole proximate cause of her injuries, were inferences that might fairly have been drawn from the evidence. (Hamilton v.
Pacific Electric Ry. Co.,
12 Cal. (2d) 598 [
Appellant cites numerous authorities (Mautino v.
Sutter Hospital Assn.,
(2) While a floor of terrazzo is not inherently dangerous in and of itself, yet when it is wet it becomes potentially dangerous, a fact concerning which defendant had superior knowledge. When defendant installed such a floor in his restaurant he knew that under his duty to exercise ordinary care for the safety of his patrons he was required to take precaution not to allow the floor and platform to become or remain wet whilе invitees were present. The mopping should have been done in such a manner as effectually to dry the surface mopped before an invitee was permitted to walk upon it. While this precaution was not taken by defendant, plaintiff was not obligated to look for wet floors. “The keeper of a public place of business is bound to keep his premises in a safe condition and must use ordinary care to avoid accidents or injury to those properly upon his prеmises on business.” (Tuttle v. Crawford, supra; DeVerdi v. Weiss, supra.) The jury having determined that defendant was negligent in allowing the platform to be so wet as to lubricate it, and that plaintiff was not negligent, its findings will not be disturbed when supрorted by substantial evidence. (Hamilton v. Pacific Electric Ry. Co., supra.)
(3) Appellant assigns as prejudicial error the following instruction, claiming that it assumes the existence of a fact on which there is a conflict, i. e., whether defendant’s employee did actually mop the floor. It follows:
“It is established that the employee
who was mopping the floor in the restaurant at the time involved in the aсcident in question
was acting as agent
for the defendant, and within the scope of his author
*519
ity, at the time of the events out of which the accident occurred.
Therefore
the acts and omissions of that agent were in contemplation of law thе acts and omissions, respectively, of his principal, the defendant, McDonnell.” This is an instruction upon the liability of the employer for the acts of his agent or еmployee. If the point made by appellant is that the instruction declared it was established that the janitor was mopping the floor, whereas appellant contends that it was a question of fact as to whether he mopped or swept the floor, still there is no prejudice in the instruction. The jury was admonished by the judgе that he did not intend to suggest inferences for them to draw and that it was “their exclusive province to determine the facts in the case and to consider the evidеnce for that purpose”. Respondents maintain that the phrase “who was mopping the floor”, etc., was for the purpose of identifying the employeе discussed, that it did not instruct the jury to find he was mopping the floor, and that even were it a “mere recital” it was not an instruction that said employee did mop the floor.
(Johnson
v.
Fletcher,
Appellant аssigns as prejudicial error the following instruction: “You are hereby instructed that the general rule is that one to whom a duty of care is owing by another has the right to assumе that the person who owes such duty will perform it; and in the absence of reasonable grounds to think otherwise, it is not negligence on the part of the one to whоm the duty is owing to assume that he will not be exposed to danger which can come to him only through a violation of that duty by the person owing it.” This identical instruction was aрproved in the cases of
Gornstein
v.
Priver,
Appellant also attacks as prejudicial error that part of the court’s instruction relative to fixing damages, wherein the court included as one of the elements of damage “such sum as will reasonably compensate said plaintiff for damage to her property”. It is true that this “element” should not have been included, but it was utterly harmless in view of the fact that no claim was made for damage to her property and there was no evidence receivеd of damage to her property. The instruction upon the subject of damage given by the court was in printed form, and the several elements or items which might constitute damage are on several sheets of paper. In this instance it was evidently an accident that the language criticised was included among the sheets which contained the elements constituting damage in cases of personal injury. However, there having been no claim or proof of damage to proрerty, we cannot assume that the jury intended to include such in its award. Under the circumstances no miscarriage of justice could have resulted from including as one of the factors in computing plaintiffs’ damages the element expressed in the clause complained of. (Tuttle v. Crawford, supra; art. VI, sec. 4% of the Constitution.)
Judgment affirmed.
Wood, J., and McComb, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied March 20, 1941.