SCHAUER, J. Plaintiff seeks to recover damages for personal injuries. Named as defendants are Saul Tumin, who was the lessee of a store in which the injuries were received, and Tumin’s employe Endriss, a carpenter. At the close of plaintiff’s case the court granted the defendants’ motions for nonsuit, and plaintiff appeals. We conclude that as to both defendants the matter should have gone to the jury.
The granting of a motion for nonsuit is warranted “. . . when, and only when, disregarding conflicting evidence, and giving to plaintiff’s evidence all the value to which it is legally entitled, indulging in evéry legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff.” (Card v. Boms (1930), 210 Cal. 200, 202 [291 P. 190]; see, also, Golceff v. Sugarman (1950), ante, pp. 152, 153 [222 P.2d 665]; Blumberg v. M. & T. Incorporated (1949), 34 Cal.2d 226, 229 [209 P.2d 1], and cases there cited.) “Unless it can be said as a matter of law, that ... no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it upon appeal, or the trial court to set it aside as a matter of law, the trial court is not justified in taking the case from the jury.” (Estate of Lances (1932), 216 Cal. 397, 400 [14 P.2d 768].) In other words, while in most appeals it is the duty of the reviewing court to indulge every reasonable intendment in favor of sustaining the trial court, substantially the reverse is true when the appeal is from an order of nonsuit. In the latter case the appellate court must view the evidence as though judgment had gone in favor of the appellant, and order a reversal if such a judgment can be sustained.
Stated in the light most favorable to plaintiff, the evidence may be summarized as follows:
Plaintiff, an electrical contractor, aged 36, at defendant Tumin’s request went at about 1:30 o’clock in the afternoon to a store in the City of Long Beach, which Tumin occupied as lessee, in order to cheek for any changes that might be necessary in the wiring. Inside the store plaintiff noticed [657]defendant Endriss, an employe of Tumin, hammering on a partition which divided the front, or “show room,” of the store from the rear part thereof. The showroom was between 16 and 17 feet wide with the front door approximately in the middle on the north side, and about 16% feet deep from the front, or north, wall, to the partition. After plaintiff and Tumin had talked together for about 10 minutes someone from outside called to Tumin and he left the store; plaintiff, who was standing “not very far from the center” of the showroom, turned to leave the store and “believes” that as he approached the front door he saw a ladder standing “almost vertically” upright against the front (north) wall at a point near the east wall; he was “very close to the front entrance when I got knocked out”; he does not “remember falling down”; he regained consciousness in the hospital. While in the store plaintiff saw no “holes in the floor” or debris or “obstructions of any kind” in his pathway; the floor “was not so slippery” that he “had difficulty holding” his feet on the floor; neither he, Tumin nor Endriss used the ladder while plaintiff was in the store; no one except plaintiff, Tumin, and Endriss was in the store; and during this period Endriss was standing on the floor while working.
Defendant Endriss testified that he had begun working in the store for Tumin on the Friday prior to the Monday on which plaintiff was injured; that in addition to demolishing the partition on which he was hammering, his work for Tumin was to include the setting of showcases and wall fixtures that Tumin “had coming from another store”; that his hammering on the partition, which was 8 feet tall, caused it to “vibrate or to jump . . . some”; the floor, of composition tile, was slippery, heavily waxed, and he slid and slipped several times and fell down on it; when he entered the store the ladder, which was a ship’s ladder 8 feet long, with sides made of one by sixes and treads “possibly” of one by eights, had been lying horizontally on its edge leaning up against the west wall of the store; he did not “remember” using, or observing anyone else use, the ladder; he heard, but did not see, plaintiff fall and discovered him lying near the east store wall with the ladder lying flat across his hips; plaintiff’s head was approximately 6 feet west of the east wall and one foot south of the north, or front, wall, and his feet were near the east wall; at the time of the accident the light was very good and no one else was in the store. Endriss further testified as follows: “Q. In this accident, when you were [658]working for Mr. Tumin, you helped him move some showcases around, didn’t you ... A. Yes, that is true. Q. It wasn’t simply carpenter work, it was some general handy man work, in addition to carpentering, although that was the principal detail 1 A. That is the line of our work naturally . . . Q. Do you know whether or not on the day that Mr. Raber was injured, that there was any object of any kind or objects which were standing at any point in the easterly half of the front store room or show room? A. Not that I recall.”
The facts as to how and when and by -whom the ladder was brought into the store, and as to by whom it was raised from a horizontal to a substantially vertical position, and who had charge of it, are not specifically shown, but we think the evidence hereinabove epitomized, considered with that hereinafter discussed, is sufficient to support a finding that defendants had possession of the store and of the ladder and that they were exercising dominion over such property.
According to defendant Tumin he had just signed the lease and taken possesssion of the store between 9 and 10 o’clock in the morning of the day the accident occurred, and at that time saw the ladder lying on the floor along the west wall of the store.
The doctor who examined plaintiff at the emergency hospital following the accident testified that plaintiff had suffered a fractured skull and that “I don’t believe it would be speculation to say that this man lying there unconscious with abrasions on his head, and bleeding from his ear, that there had been a blow to the head.” Plaintiff’s wife testified that during the 14 years of their marriage plaintiff “has been very health y. He has never been sick.”
Plaintiff was a business visitor toward whom Tumin, together with the servant through whom he was acting in altering the premises, “was obliged to exercise ordinary care to keep the premises in a reasonably safe condition, or to warn ... of danger. The duty was not limited to conditions actually known ... to be dangerous, but extended also to conditions which might have been found dangerous by the exercise of reasonable care. [Citations.] ” (Blumberg v. M. & T. Incorporated (1949), supra, 34 Cal.2d 226, 229.)
Plaintiff urges that the evidence justifies application of the res ipsa loquitur doctrine, and that the nonsuit was therefore improperly granted (see Hinds v. Wheadon (1942), 19 Cal.2d 458, 461 [121 P.2d 724]; Ybarra v. Spangard (1944), [65925] Cal.2d 486 [154 P.2d 687, 162 A.L.R. 1258]). Defendants’ position is that any judgment against them would be untenable because based upon nothing more substantial than speculation and guessing (see Reese v. Smith (1937), 9 Cal.2d 324, 328 [70 P.2d 933]).
As declared in Ybarra v. Spangard (1944), supra, page 489, “The doctrine of res ipsa loquitur has three conditions; ‘ (1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’ (Prosser, Torts, p. 295.)” A more detailed explanation of the applications, limitations and effects of the doctrine may be found in Dierman v. Providence Hospital (1947), 31 Cal.2d 290, 295 [188 P.2d 12]. It has also been more specifically pointed out that “the applicability of the doctrine of res ipsa loquitur depends on whether it can be said, in the light of common experience, that the accident was more likely than not the result of their [defendants’] negligence. [Citations.] ‘Where no such balance of probabilities in favor of negligence can be found, res ipsa loquitur does not apply.’ (Prosser on Torts [1941], p. 297.)” (LaPorte v. Houston (1948), 33 Cal.2d 167, 169 [199 P.2d 665].)
We are satisfied that a permissible view of the evidence here meets the several elements of the doctrine of res ipsa loquitur as above depicted. Certainly the accident appears to satisfy the first requirement: an invitee in a showroom is not ordinarily, in the absence of someone’s negligence, struck on the head by a falling ship’s ladder; secondly, the evidence tends to show that the instrumentality—the ladder on the slippery floor in the showroom—was within the exclusive control of defendants.
Although defendant Tumin testified that he had entered into possession of the premises only about four hours prior to the accident, Endriss stated that he himself had commenced “working on the job” of “demolishing” the partition for Tumin some three days earlier. It may thus be inferred that the defendants were not only in control of the store and of the ladder, but had had control for a sufficient period of time to have discovered, by the exercise of reasonable care, the fact that the floor was slippery and that the ladder was standing “almost vertically” up against the store wall, if, indeed, the floor had not been polished, and the ladder had [660]not been placed in its almost vertical position, by either or both of the defendants during their work about the premises. The fact that plaintiff is by the very circumstances under which he was injured unable to specifically identify, as between master and servant, the actively negligent person does not deprive him of the aid of the doctrine of res ipsa loquitur. (See Ybarra v. Spangard (1944), supra, 25 Cal.2d 486, 490; Gavero v. Franklin etc. Benevolent Soc. (1950), ante, pp. 301, 311 [223 P.2d 471].)
From plaintiff’s testimony that he does not remember falling and that as he proceeded from near the center of the showroom to a point near the front door (which was approximately midway■ between the east and west walls) he “got knocked out,” considered with the further fact that plaintiff was found on the floor with the ladder lying across his body and suffering from injuries including a fractured skull which resulted from a blow to the head, together also with the other pertinent circumstances in evidence, it may be inferred that the ladder (which had been standing near the east wall) fell and caused plaintiff’s fall, rather than that plaintiff fell and caused the ladder to topple. In view of the slippery floor, the substantial weight of a man’s body, the apparently substantial weight of the ladder, and its position across plaintiff’s body, it cannot be said that plaintiff’s position when found precludes the inferences above suggested.
As to the. third element of res ipsa loquitur, above enumerated, the test is met in that the evidence tends to show that plaintiff had no contact with the ladder until it fell upon him as he was leaving the store.
Under the circumstances related it appears that the “balance of probabilities” test has been met. It is a matter of common knowledge that a ladder, and particularly one of the size and apparent weight of that involved here, cannot be made to stand upright against a wall, on a heavily waxed composition tile floor, without some fastening or other special attachment, unless the bottom or foot of the ladder is at a point almost touching the wall itself, so that the ladder is actually “almost vertically” upright (as plaintiff’s testimony suggests) and thus in an inherently dangerous position from which it quite likely will topple forward from the top at a small jar or vibration. Here it wquld seem that the owner of the ladder and premises, and the employe working therein, should have foreseen that vibration or a jar might be caused by traffic on the street outside the store, by the hammering [661]of Endriss on the partition, or even by the tread of persons walking about the store, and that placing or leaving the ladder substantially upright on the slippery floor would be dangerous to persons lawfully upon the premises. Certainly it seems to us that the balance of probabilities here suggests negligence on the part of the person or persons responsible for the ladder and the slippery floor, rather than that the accident was unavoidable or due to negligence of the plaintiff. Defendants, not plaintiff, were in control of the premises.
Defendants argue that the fact that the ladder was found across plaintiff’s body at an oblique rather than a right angle to the wall against which it had been leaning establishes that it “must have toppled over sideways” rather than forward, and that “it is common human experience that a ladder . . . will not fall over sideways unless some outside agency supplies the moving force.” However, the force of the contact between the falling ladder and plaintiff’s head or other part of his body would in common experience cause deflection from the initial direction of fall, and hence defendants’ argument, however plausible, is not as a matter of law compelling, and, therefore, cannot sustain the nonsuit. The fact that testimony tended to show that plaintiff was near the door in the middle of the front wall and that the ladder was upright near the east wall, but leaning against the front wall, likewise cannot support the nonsuit. Obviously the relative positions of the plaintiff and of the ladder were to some extent approximations, and inconsistencies in permissible inferences from the evidence present issues of fact which must be resolved by findings and a judgment rather than by an order of nonsuit.
The judgment is reversed and the cause remanded for a new trial.
Gibson; C. J., Shenk, J., Carter, J., and Spence, J., concurred.