Tschumy v. Brook's Market

California Court of Appeal

Tschumy v. Brook's Market

180 P.2d 933, 79 Cal. App. 2d 556, 1947 Cal. App. LEXIS 863

CourtCalifornia Court of Appeal

DecidedMay 8, 1947

DocketCiv. No. 15647

StatusPublished

Cited by4 cases

This text of 180 P.2d 933 (Tschumy v. Brook's Market) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tschumy v. Brook's Market, 180 P.2d 933, 79 Cal. App. 2d 556, 1947 Cal. App. LEXIS 863 (Cal. Ct. App. 1947).

Pincite

Opinion

WILSON, J.

This is the second appeal in this action. The first appeal was by plaintiff from the judgment entered on a verdict in favor of defendants. That judgment was reversed on account of errors- in instructions given to the jury. (Tschumy v. Brook’s Market, 60 Cal.App.2d 158 [140 P.2d 431].)

The present appeal is from a judgment on a verdict which the court directed the jury to render in favor of defendants.

A directed verdict may be ordered only when conflicting evidence is disregarded and plaintiff’s evidence is given the value to which it is legally entitled, indulging all legitimate inferences that may be drawn therefrom,' and the result is that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff. A motion for a directed verdict concedes as true all evidence given on behalf of plaintiff with all fair and reasonable inferences to be deduced therefrom, and even though the court might be justified in granting a new trial in the event of a verdict in favor of plaintiff it would not be justified in directing a verdict on the same evidence. (Estate of Lances, 216 Cal. 397, 400 [14 P.2d 768]; Estate of Flood, 217 Cal. 763, 768 [21 P.2d 579] ; Thomsen v. Burgeson, 26 Cal.App.2d 235, 240 [79 P.2d 136] ; Engstrom v. Auburn Auto. Sales Corp., 11 Cal. 2d 64, 66 [77 P.2d 1059] ; Gish v. Los Angeles Ry. Corp., 13 Cal.2d 570, 572 [90 P.2d 792].)

The facts relating to the parking lot on which the accident took place, the adjacent market and sidewalk, the -lighting conditions, and the projection from the sign which caused plaintiff to fall, are fully described in the opinion rendered on the former appeal and need not be repeated here. For a better understanding of the character of the sign and its projecting supports a reproduction of a photograph introduced in evidence is appended. [See photo opposite page.]

It should be noted in connection with the photograph that according to the evidence, as plaintiff passed in front of the sign (it was on her right), she stepped onto the sidewalk with her left foot and as she raised her right foot it caught in the iron ring at the end of one of the projections from the bottom of the sign, causing her to fall. The ring is approximately two feet from the sign and indicates the distance of her body from the sign before she fell.

In addition to the evidence related in the opinion on the former appeal the gasoline station attendant testified at the [559]*559second trial, referring to the place where the accident happened, that “it was dark in that area,” and that when he went to the market, which occurred almost every night, and walked from a brightly lighted place into the area in question, it was a darker spot by comparison with the adjacent area.

On the former appeal the court held that plaintiff was an invitee upon the premises (60 Cal.App.2d at p. 165); that the invitation to enter included an invitation for her to depart “from such premises over such portions thereof as a reasonable person, situated as plaintiff was, would reasonably believe were held open as a proper means of departing from the premises”; that the pavement in front of the building, the pavement of the parking lot and of the sidewalk, all being on the same level, constituted a proper means of approach to the entrance by reason of the physical arrangement of the premises, acquiescence, dedication, and a long established custom. (P. 166.)

The court further held that since defendant Stark gave defendant ice company “free possession” of the space leased to the ice company as soon as the lease was signed, although [560]*560it was not effective until more than a month later, and since there was nothing to indicate to plaintiff or to other patrons of the market that there was any change in the custom that had prevailed for several years whereby customers of the market were permitted by Stark to approach and depart from the market across the parking lot, or to signify that the small space thereafter to be occupied by the ice machine was to be excluded from the usual and customary places over which customers for many years had traveled, the ice company itself was on the premises prior to October 1st only by the invitation or acquiescence of Stark; that at the time of the accident, irrespective of the lease, Stark had retained the rights of use and passage over the space which was to be occupied by the ice vending machine. Accordingly the court held that the instruction to the jury to the effect that Stark was not liable was prejudicially erroneous. From this it follows that the converse of the instruction is a correct statement of the law, to wit, that Stark was liable by reason of his permission to the ice company to use the premises prior to the effective date of the lease and by reason of the presence of the sign installed by the ice company. As to the ice company, the court held that since plaintiff was an invitee of Stark and since the ice company was likewise an invitee or licensee of Stark the company owed plaintiff as an invitee the duty of exercising ordinary care. (P. 168.) To the same effect see, also, Brown v. Pepperdine, 53 Cal.App. 334, 336 [200 P. 36] ; Donahoo v. Kress House Moving Corp., 25 Cal.2d 237, 243 [153 P.2d 349] ; Wade v. Buyers, 47 Cal.App.2d 168,170 [117 P.2d 392].

[559]

Free access — add to your briefcase to read the full text and ask questions with AI