Goldberger v. Market Street Railway Co.

The action is to recover damages on account of personal injuries alleged to have resulted through the negligence of defendant. The case was tried before a jury and verdict rendered in favor of defendant. Judgment followed pursuant to said verdict. Plaintiff prosecutes this appeal. The facts may be narrated.

Plaintiff is, and was at all the times within the period discussed, a buyer of used machinery and equipment. The defendant Market Street Railway Company was the owner of certain motors, belting and machinery formerly used in a power-house located within the city of San Francisco. This power-house had been closed but not dismantled; much of

We may proceed with the respective claims of appellant and respondent. In this review we revert to the original designation of the parties, viz., plaintiff and defendant. Continuing, then, we find plaintiff and the servant of the defendant at the door of the power-house preparatory to entry. Both sides agree that at that time plaintiff’s relation to defendant was that of an invitee to whom defendant owed a certain duty. The defendant was obligated to use ordinary care for the safety of his said invitee and if there was any danger attendant upon the entry, or upon the work which the invitee was to do upon or in the premises, and such danger arose from causes or conditions not readily apparent to the eye, it was the duty of defendant to give the said invitee reasonable notice or warning of such danger. (Shanley v. American Olive Co., 185 Cal. 552 [ 197 Pac. 793 ]; Mautino v. Sutter Hospital Assn., 211 Cal. 556 [ 296 Pac. 76 ].) The power-house was opened and plaintiff and his associate, together with the guide or caretaker of the defendant, entered. There is some conflict in the evidence as to the then condition of the premises with regard to the sufficiency of the lighting. It may be conceded, as indeed it is, that the building had many windows through which came natural light sufficient to permit a survey of such objects as arose above the floor level. However, the evidence might support a conclusion that the floor surface was somewhat dark and shaded. This condition would result from the fact that large pieces of machinery standing upon the

The plaintiff had beén engaged in the business of buying machinery and equipment for a period of almost twenty-five years. He had purchased other material from a different power-house but he had never seen or been in the powerhouse herein concerned. Almost immediately upon entry into the building, plaintiff began an examination. He began with a large motor and after going over that he started on the belting. Plaintiff testified that he then asked the attendant or guide whether there were any cellars or holes in the building, and the reply was that there was no hole or cellar, but a solid concrete floor all through. The attendant asked plaintiff the purpose of the question and plaintiff informed him that if there was a celler it would be necessary to prop up the timbers in the cellar in case a derrick had to be used in lifting out the machinery. Some importance is hereafter attached to this conversation and it is timely that we give more detail thereon. In passing, we note the attendant denies any such conversation took place, and denies that he ever told plaintiff there was no cellar or that there were no holes in the floor. Disregarding the conflict and assuming that the conversation occurred, it must be borne in mind with the question and the purpose thereof. At the time the question was asked the plaintiff was standing directly beside a pit in which a fly-wheel operated. He admitted seeing this pit, and possibly one more. Obviously, his question concerning holes or cellars had no reference to the pits used in the installation of machinery. Further, considering the reason plaintiff desired the information as stated, the given reason was that it would make a difference if a derrick were used in moving out the machines, because if there was a cellar or hole the- timbers sustaining the floor above would have to be strengthened. Such a course would not be necessary in the case of pits in the surface of the floor. Therefore, we may assume, and there seems to be no contradiction either in fact or argument, that the presence or absence of floor pits was not the information sought.

The plaintiff being an expert in the dismantling of machines and having an admitted knowledge of at least one

Plaintiff denies that the- attendant said anything to him about waiting or about getting a light. Plaintiff, in denying this statement having been made, affirms that there was no need of any light, and on this point there is complete accord from all sides to the effect that there was sufficient light to disclose everything above the surface. Defendant contends there was sufficient light to disclose everything, including the floor. Admitting the conflict and without attempting to determine it, the conceded fact is that if further light were required, it was to give a clear view of the floor, and the contour thereof, and to disclose any openings therein. Therefore, at the time when the attendant made the remark and gave the notice that more light was desirable, the party had reached a point at or near which the shadows of the surrounding structures obscured or shaded the floor plan. Summing up the situation to this point, we find the plaintiff upon the premises of defendant as an invitee, for whose safety defendant was bound to use ordinary care; that the exercise of such ordinary care required defendant to give plaintiff ample warning of concealed danger. The plaintiff proceeded under the guidance of defendant’s agent through the premises wherein there was no danger concealed, and where an abundance of natural light threw into view the conditions existing. At the very

In submitting the case to the jury, the court gave the following instruction: “The only alleged negligence referred to in plaintiff’s complaint, upon which he bases his cause of action, is the alleged failure of the defendant to warn him of the existence of that pit into which it is claimed that he fell. If you find from the evidence that prior to the time it is claimed that plaintiff fell into such pit and while he was standing in a part of said premises distant from said pit he was told by an employee of said defendant to wait where he was until a light was obtained, but instead of so doing he proceeded to that part of said premises where said pit is located, then I charge you that such warning fully discharged the duty of the defendant in the premises, and if you so find, your verdict should be against the plaintiff and in favor of the defendant, Market Street Railway Company.” The entire appeal centers about this instruction.

Appellant specifies two grounds of attack: 1. That the court erred in ruling, as a matter of law, that it was a full discharge of defendant’s duty for Shufelt, the attendant, to say, without more, merely: “Wait, and I will see if I can get some light.” 2. The court erred in assuming as a fact that such an equivocal remark was a warning of concealed danger, rather than a courteous offer to illuminate the belting, to make examination easier. We have three interesting, learned and instructive briefs on the attacked instruction, and every word is painstakingly analyzed and argued. We are not inclined to follow the respective arguments throughout all the niceties urged. We will consider the instruction as a whole. In its effect the instruction told the jury that if the plaintiff was standing in a place of safety and was told by the attendant, under whose guidance he was permitted entrance to the premises, to wait where he was until a light was obtained, and plaintiff had disregarded this order and proceeded on without waiting, there had been no failure of duty on the part of defendant. It seems of not the greatest importance that we determine whether the words of the attendant constituted a warning or a direction.

The fact that there were pits in the building, under the evidence, was obvious and fully apparent and well known to plaintiff. True, the exact location of these pits was not known to plaintiff, or at least we may deem such knowledge to have been a disputed fact sufficiently in conflict to render erroneous any instruction based upon an assumption thereof. On such portions of the floor where light was thrown, the presence of any depression or pit was unmistakable. The pit itself was not a concealed or latent hazard. The danger lay entirely in the fact of darkness. The one definite way to destroy and remove the latent danger was to make it visible and obvious, and there was no surer method of accomplishing this result than by light. The words of defendant's employee, directed to plaintiff at a point where for the first time any latent danger might be, were sufficient to convey to plaintiff a notice of the lack of light, and with such notice came also a knowledge that danger might lurk in the shadows. The questioned instruction told the jury that if defendant’s employee had told plaintiff to await more light before proceeding, and plaintiff, heedless of the order or suggestion, went on alone into danger, the jury should find for defendant. Whether or not the statement of defendant’s said employee was a warning is not conclusive of the question. If, as the instruction indicates, the words and conduct of the employee fully discharged the duty owed to plaintiff, it becomes immaterial that the duty assumed in the instruction might have been loosely stated.

The whole theory of plaintiff’s case is that he was on the premises trusting his safety to this employee; that

It is well settled that a single individual may, on the same premises and during practically the same period, occupy various legal relationships toward the owner. One may have entered the premises under invitation, and during his stay he may become a licensee as to certain portions and a trespasser as to others. In each change of status the rights and duties of the respective parties vary. (Lindholm v. Northwestern Pac. R. Co., 79 Cal. App. 34 [ 248 Pac. 1033 ].) An invitee who enters on portions of the premises where he has no right to enter becomes a licensee, and the only duty owing him then is to refrain from wilful or wanton injury. (Chichas v. Foley Bros. Grocery Co., 73 Mont. 575 [ 236 Pac. 361 ].) It is well settled that a person may be an invitee in a portion of a building and not enjoy that status as to other portions thereof. (Medcroft v. Merchants Exchange, 211 Cal. 404 [ 295 Pac. 822 ]; State Compensation Ins. Fund v. Allen, 104 Cal. App. 400 [ 285 Pac. 1053 ].) By way of illustration if one invites a buyer of furniture to his home for the purpose of inspecting and appraising furniture offered for sale, and upon his arrival at the home the front room is crowded with chairs and tables, and in full light and after inspection of the goods in said room the owner states that there are other goods in the next room, which is unlighted, and tells the invitee to wait until a light is obtained, there can be no question but that the owner is absolved from the necessity of any further warning as to any latent dangers that may be in the latter room. And under such conditions, the former invitee going unattended and without light into the second room, shifts his status from an invitee to a mere licensee, if not a trespasser.

The second ground of attack upon the instruction is that it is an instruction upon the facts. The argument is that it was a disputed question whether the words used were merely by way of a courteous offer to aid in examining the belting or whether the words were intended to convey the idea of a safer progress through the remaining equipment. In Colberth v. Great Atlantic & P. Tea Co., supra, we find this apt language: “The plaintiff insists that the jury should have been permitted to find not only whether she was notified not to go back where the trap door was located, but also whether the plaintiff, in view of the nature or character of such notice, exercised that degree of care and caution demanded of her; in other words, that, notwithstanding the jury should find that the defendant expressly withdrew its implied invitation to the plaintiff to enter the rear of its store, where this danger existed, and notwithstanding that she, without the knowledge of the defendant, disregarded such express notice of withdrawal, and placed herself in a position of peril, the jury should be permitted to speculate whether the defendant ought not to have gone further and assigned a definite reason for its

In Wixon v. Raisch Improvement Co., 91 Cal. App. 129 , 134 [ 266 Pac. 964 ], it is said that the difference between the words “stop” and “wait” is infinitesimal. An order to wait is a command to stop. No other complaint is made as to instructions given or refused, nor is error predicated upon any of the trial court’s rulings in the admission or rejection of testimony. Therefore we assume that the law as applicable to all phases of the case and all theories of the parties was fully explained to the jury. A full and complete hearing was given. The plaintiff himself set forth, in the following instruction given at his request, the duty he claimed owing to him: “You are instructed that one who invites another upon his premises owes such invited person the duty of having his premises in a reasonably safe condition and of maintaining his premises in a reasonably safe condition, and of exercising reasonable care in protecting the invitee from injury, and of giving warning of concealed perils.” The instruction here reviewed is complementary thereto and correctly sets forth the manner in which such duty may be discharged.

The judgment is affirmed.

Tyler, P. J., and Knight, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on April 26, 1933, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on May 25, 1933.