Post v. Camino Del Properties, Inc.

Plaintiff and appellant brought this action against defendant Camino Del Properties, Inc. and defendant and respondent Mission Valley Country Club, a nonprofit corporation (hereinafter referred to as the Club), alleging that on August 19, 1956, both defendants operated and maintained a recreational area within which was a swimming pool; that on that day plaintiff, as an invitee, went into that area, slipped and fell as a direct result of defendants ’ negligent maintenance of the surface of the recreational area in a slippery, hazardous and unsafe condition. Plaintiff claimed injuries and damage to the extent of $24,440.

Defendants answered and claimed respondent Club was lessee in possession of the premises and defendant Camino Del Properties, Inc., was lessor and that respondent Club maintained and operated the premises. Each defendant

The issues presented are-, (1) Whether there-was sufficient substantial evidence to support the verdict of the jury and whether the trial court was precluded from granting defendant Club a judgment notwithstanding the verdict; and (2) If so, did the trial court err in granting a new trial upon the grounds stated? In determining these questions a résumé of the evidence is necessary.

Plaintiff Post, then about 42 years of age, had been a member of the Club for three and one-half years. On this particular morning he played 18 holes of golf and concluded about noon time. He and his golfing friends visited the snack bar. He had two bourbon and sodas and lunch, and donned a swimming suit. Thus clad and barefooted he seated himself near the swimming pool for about 30 minutes, where his two children were playing. The area around the pool was of roughened surface concrete. Before reaching the pool and sunken below this level was an area of smooth concrete for a distance of 12 to 15 feet from the pool. A set of two steps, 12 to 14 inches wide with 6 or 8 inch risers, was constructed between these areas and extends on three sides of the pool. The steps were of a black cement and not roughened. Plaintiff walked toward these steps, from where he was seated. They were wet from other bathers’ dripping suits. Somewhere thereon plaintiff’s foot slipped out from under him and he fell. His head struck the concrete and knocked him unconscious. He received injuries resulting in a fracture of the

Plaintiff testified he walked in the usual manner to the steps, slipped on the top one, and fell down on the cement; that he had visited the pool and used it on four or more previous occasions; that he was familiar with the rough cement area; that he was not familiar with the smooth black cement area where he fell, but did know a tape was applied in the shallow portion where he usually went to enter the pool and assumed it extended around the pool; that ordinarily, for reading purposes, he required eye-glasses but did not need or use them to see where he was going on this occasion.

Plaintiff’s golfing partner testified he believed plaintiff had some form of drink after the game but he was ‘‘ completely sober”; that after that, he went home and did not see the plaintiff or the accident happen.

Another witness for plaintiff testified he had been swimming that day and was seated near the pool; that he saw a man walk very casually toward the pool and his feet flipped up in the air about 3 or 4 feet and he came down with a resounding smack.

Plaintiff called a witness under section 2055 of the Code of Civil Procedure, the pool manager and life guard, who testified generally that he was such manager for about two years guarding the people to make sure no one drowned; that he was there when the pool first went into operation; that he put stripping along the west step to stop the slipping because there was another accident where most of the people walked and they had quite a few falls in that area. (A motion to strike that last statement as to prior falls was denied by the trial court and exception is here taken to that ruling.) He then testified the reason he put the stripping down was because of the smooth concrete and “the minute people become wet and hit the concrete they would slip ’ ’; that on occasions prior to August 19, 1956, he requested his superior or officials of the Club to place stripping along the steps east of the planter-box (apparently in the vicinity where plaintiff fell); that they kept saying they would obtain it but did not do so; that

A life guard testifying for defendants, said he saw the accident, saw someone (Mr. Post) “lose their balance and fall”; that he was coming toward the pool towards the steps, in a “rather hurriedly walk” and as he reached the second step “his feet went out from under him and he fell back”; that he did not see Mr. Storey, the pool manager, in the area just before the fall but did see him shortly thereafter and that there was water on the steps but no foreign substance on which plaintiff could have slipped. After full instructions on the law and on this evidence the jury rendered its finding against the defendant Club.

The general rule adopted in this state is that the trial court may enter a judgment notwithstanding the verdict of a jury only when, disregarding conflicting evidence and indulging every legitimate inference which may be drawn from the evidence in favor of the party against whom the judgment is entered, it can be said there is no evidence of sufficient substantiality to support a verdict in favor of such party. (Voorheis v. Hawthorne-Michaels Company, 151 Cal.App.2d 688 , 695 [ 312 P.2d 51 ] ; Raber v. Tumin, 36 Cal.2d 654 [ 226 P.2d 574 ] ; Blake v. Hearst Publications, Inc., 75 Cal.App.2d 6 , 8 [ 170 P.2d 100 ] ; Card v. Boms, 210 Cal. 200 , 202 [ 291 P. 190 ].)

Concerning the evidence bearing on the question of lack of ordinary care exercised by defendant Club, which concededly maintained the premises, there is evidence, if believed by the jury, that the steps in question presented a smooth surface which, when water was applied, would become at once a slippery and dangerous surface. There is testimony that this claimed hazardous condition was known to the employees of the defendant Club and steps had previously been taken to rectify this condition along other portions of the area by brushing a nonskid material on the steps which material had become worn and needed further attention to make them safe. It might be reasonably inferred that the defendant Club officials knew that these particular steps were not being properly maintained at that time and there was some responsibility on defendant Club to properly maintain them. This is the view the trial judge first took in reviewing and denying defendants’ motion for a nonsuit, and such conclusion seems tenable. (Raber v. Tumin, 36 Cal.2d 654 , 656 [ 226 P.2d 574 ].) We therefore conclude that it was error to grant defendants’ motion for judgment notwithstanding the verdict.

A different rule applies in considering the ruling on defendants’ motion for a new trial. Usually, on a question of the insufficiency of the evidence, where there is any substantial conflict, the matter is largely in the discretion of the trial court to adjudge the credibility of the witnesses, their interest in the case, determine the probative force of their testimony, and weigh the evidence. It is its exclusive province to weigh

In addition, the question of the admissibility of the testimony in reference to other people slipping on previous occasions at other places around the pool was open to review by the trial court on the motion for a new trial. In Laird v. T. W. Mather, Inc., 51 Cal.2d 210 [ 331 P.2d 617 ], our Supreme Court held that before evidence of previous injuries may be admitted on the issue of whether or not the condition as it existed was in fact dangerous, it must first be shown that the conditions under which the alleged previous accident occurred were the same or substantially similar to the one in question, but the strictness of this requirement is “much relaxed” when the purpose of the offered evidence is to show notice. Therein, Thompson v. Buffum’s, Inc., 17 Cal.App.2d

Plaintiff’s complaint alleges his injuries were due to the negligent maintenance of the steps as opposed to the construction of them. The trial court admitted such evidence without limitation or qualification as to its purpose. No given instruction on that subject has been brought to our attention which would place any qualification or limitation on its consideration by the jury. The evidence of others slipping around some portions of the pool was rather indefinite and did not show such previous slippings were the same or “substantially similar” or took place in the area here indicated. They were in the area ordinarily used for egress and ingress to the pool, as distinguished from this area. The instant slipping was not the result of running or playing on the steps. The evidence of other slippings rather indicates that such slippings as were witnessed by the attendant were due to the activities of children in play, while running near the shallow end of the pool, where strips had been provided as a precautionary measure. The trial court, on a motion for new trial, apparently reconsidered the effect of this evidence and concluded that a sufficient foundation had not been laid to admit it for general purposes or that the failure to instruct the jury as to the limitation of its purpose was error and prejudicial, and therefore a new trial should be had under proper instructions. This conclusion would not be unreasonable. (Magnuson v. City of Stockton, 116 Cal.App. 532 , 535 [ 3 P.2d 30 ] ; Gorman v. County of Sacramento, 92 Cal.App. 656 [ 268 P. 1083 ] ; Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305 , 307 [ 163 P.2d 689 ].)

Mussell, J., and Shepard, J., concurred.