Keane v. McIndoe

PEEK, J.

Robert E. Keane brought this action to recover damages for personal injuries allegedly sustained by him on August 20,1945, when he tripped and fell over a rope attached to a gate upon premises rented by him from the owner, the defendant Clara McIndoe. The allegations contained in the complaint were put in issue by the answer which consisted of a general denial thereof, and the case was tried before the court sitting without a jury. Findings of fact favorable to the plaintiff were adopted by the court, and the defendant has appealed from the judgment which was entered accordingly.

[84]

The evidence, reviewed in the light most favorable to respondent

(Crawford

v.

Pacific States Savings & Loan Assn.,

22 Cal.App.2d 448 [71 P.2d 333]), discloses that on or about August 19, 1945, plaintiff and his wife rented an apartment from Mrs. McIndoe. The apartment consisted of a sun room, a “large room,” and a kitchenette equipped with a stove and certain cooking utensils, but no garbage can. Appellant, however, stated to respondent’s wife that she had a garbage pail for the apartment which she would bring to her, but did not do so. After the garbage from five meals had accumulated the respondent asked appellant where he could dispose of the same. Appellant told him that as yet she did not have a receptacle but that he could dispose of it in a garbage can located in a yard adjacent to the Inn. She further testified that the other tenants made use of the garbage can and that she paid the bill for the removal of the garbage. After procuring the garbage from the apartment respondent proceeded to walk toward the yard where the receptacle was located. The yard was enclosed by a fence necessitating that he pass through a gate in order to reach it. He testified that as he did so he tripped over a rope and fell to the ground, sustaining serious injuries. The rope was fastened to the two gate posts and was not seen by the respondent. Its purpose was to fasten the gate when it was closed but when the gate was open it hung loose. Appellant testified that she knew nothing about the rope although there is evidence that it had been attached to the gate for more than a month. However, she did know that the gate was used by tenants and further testified under section 2055 of the Code of Civil Procedure that the garbage can was for the common use of the tenants.