Mehollin v. Ysuchiyama

SEAWELL, J.

Plaintiff prosecutes this appeal from a judgment for defendants entered upon a jury verdict. The action was brought by plaintiff, forty-three years of age, to recover damages for the wrongful death of his mother, sixty-three years of age, upon whom he was dependent for support by reason of his physical infirmities.

The plaintiff’s mother received the injuries from which she died in the Grand Central Public Market in the city of Los Angeles. Defendants Ysuchiyama and Tanobe lease a stall in said market in which they sell fruit and vegetables. Decedent had purchased tomatoes at said stall. As she was leaving the stall she fell and sustained injuries consisting of a fractured left humerus (bone of the upper arm), a fracture of two dorsal vertebrae, and a bruise on the head. She died about a month after the accident from a pulmonary embolism, which, it was stipulated, resulted from said injuries. It

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was the theory of plaintiff that decedent fell by reason of boxes negligently left in the aisle adjoining the stall by an employee of defendants, or because of boards protruding from beneath said boxes. As grounds for reversal plaintiff urges errors in instructions. No claim is made that the floor was wet, or that there was any foreign matter on it, other than said boxes and boards.

The stall of defendants occupies a rectangular space

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by 23 feet. Produce is displayed in sloping counters as commonly used in vegetable markets. Sales are made from within the stall, where the produce is kept. There was testimony on hehalf of defendants that by reason of the width of the counters it is impossible to arrange the displays from the back of the counters. Boxes of fruit and vegetables to be arranged for display 'are carried from the stall into the adjoining aisles. The produce is then taken from the boxes and placed in the display counters. The market opens at 8 A. M. Employees of defendants customarily arrive between 7 and 8 A. M., and commence the work of arranging the displays, which is completed about 9 o’clock. The market is brightly lighted at all times.

The accident took place at about 8 :30 A. M. Defendants admit that in the aisle adjoining their stall on the east, near the northeast corner of the stall, there were three piles of lug boxes. One pile contained nine boxes, and the other two, three boxes each. These boxes, containing peas, had been taken into the aisle from the stall to arrange the counter for display by employee Kiyoshi. He had finished arranging the peas, leaving the boxes, empty or partially filled, in the aisle, and at the time decedent came to the stall he was arranging a display of cherries. He testified that he had not finished decorating with the peas more than ten minutes before the accident took place. According to his testimony, decedent stood between two of the piles of boxes while he waited on her. He sold her a pound of tomatoes and then turned to continue arranging the cherries. He next saw decedent lying prone on the concrete floor by the boxes.