Zito v. Weitz

WOOD (W. J.), J.

Plaintiff commenced this action to recover damages for injuries which he received when his head struck against a fire-escape ladder at defendant’s apartment house. Upon the termination of plaintiff’s evidence the trial court granted defendant’s motion for a nonsuit. The appeal is from “the judgment and the order entered in the minutes.”

Defendant owns and operates an apartment house on Fountain Avenue in the city of Los Angeles known as “Fountain Manor Apartments.” Along the outside west wall of the building a walk approximately thirty-six inches in width extends from the sidewalk at the front of the building to an alley in the rear. On the west side of the walk there is a cedar hedge approximately twelve feet in height. Three entrances, or exits, open onto the walk and at each of the entrances there is a metal fire-escape to permit emergency egress from the upper floors of the building. At the time of the accident and prior thereto the ladder in question was of the type in general use in apartment houses in Los Angeles. Its two rails were contained within parallel iron channels in a vertical position which served as guides within which the ladder could move up and down. A cable attached to the top of the ladder passed over a pulley and its other end was attached to the top of a counter-weight which was contained in a similar set of iron channels which permitted the counter-weight to move

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up and down in a plane parallel to the ladder. The ladder normally was retained in a raised position at the front floor level by an iron lever which operated in a horizontal plane so that one end could be placed under a ladder rung, and also by gravity, the counter-weight being somewhat heavier than the ladder itself. The ladder could not descend without being operated by some human agency. The lever had to be turned to release the rung which it retained and then pressure had to be applied in a downward direction to overcome the gravity pull of the counter-weight.

Plaintiff had been a tenant in the apartment house for about twelve years. In the afternoon of October 13, 1941, while walking towards one of the entrances, his head struck against the ladder of one of the fire-escapes, which was in a lowered position. No evidence was introduced to show how or in what manner or by whom the ladder had been lowered or for what length of time it had been in a lowered position. No defect in the ladder or the fire-escape was proved, but on the contrary it was shown in evidence that they were in good order at the time of the accident and were of a proper design. There was nothing in the evidence to charge defendant with notice, either actual or constructive, that the ladder was down at the time of the accident. Defendant was ill and in bed on the day of the accident and the apartment house clerk who was on duty knew nothing about the position of the ladder until after the accident.