McCOMB, J. I dissent. The majority opinion, in my view, reaches an anomalous result.
First, it is conceded by the plaintiff in the agreed statement of fact that there is no evidence in the entire record showing or tending to show the cause of plaintiff’s injuries.
Second, the record discloses a total absence of any evidence as to how the accident occurred. The record merely reveals that plaintiff testified that “she stepped out of the door on to the platform, turned so that she faced the door, and claims that the last thing she remembers is pulling the door closed. She claims that the next thing she knew she was in her own apartment, which was after the accident had occurred, and after she had been injured.”
Hence, we have the novel result of the majority opinion disregarding the established rule that every intendment and presumption not contradicted by or inconsistent with the record on appeal must be indulged in favor of the judgment of the trial court. (4 Cal.Jur.2d (1952), Appeal and Error, § 559, p. 426; § 571, p.444.)
In place of this rule, the majority opinion disregards the finding of the trial court that defendant’s alleged negligence was not the proximate cause of plaintiff’s injuries. In place of such finding, it speculates “that plaintiff fell at one of those three places, and that a railing would have prevented her tumbling to the public sidewalk.” This, of course, overlooks the long established rule that the burden is upon the plaintiff to introduce evidence proving the proximate causal connection between the injury or damage complained of and the alleged negligence of the defendant. It is not sufficient that a negligent act of the defendant might have been the proximate cause of the accident. (35 Cal.Jur.2d (1957), Negligence, § 71, p. 577.)
I would affirm the judgment of the trial court, with an opinion reading thus:
Plaintiffs appeal from a judgment in favor of defendants [728]after trial before the court without a jury in an action to recover damages for personal injuries suffered by plaintiff Dorothy Burdette (hereinafter referred to as “plaintiff”) from a fall onto a public sidewalk in front of the apartment in which she lived.
Facts: The present appeal is upon an agreed statement of facts, which discloses that defendant Hisehemoeller was the owner of a lot at 11305 Biona Drive, West Los Angeles. He entered into an agreement with defendant Rollefson Construction Company (hereinafter referred to as “Rollefson”), wherein Rollefson was to erect a six-unit apartment building on the lot.
After the building had been completed, Rollefson was to participate in either the profit from the sale of the property or a portion of the income from the property in lieu of a profit over and above the actual cost of erecting the building.
When the building was nearing completion, apartment 2 was leased to plaintiff and her husband for a year’s occupancy beginning October 1, 1956, the date upon which they moved into the apartment. The premises, and particularly apartment 2, were shown to plaintiff during the month of September. At that time she was advised that there was no railing yet installed around the platform or stairway leading to apartment 2 but that one would be installed later.
The building was reached by ascending a flight of 10 steps leading from the public sidewalk below the building to a private exterior sidewalk at the top of this stairway. The private sidewalk was approximately 30 to 40 feet in length and was situated on “ground level” immediately in front of plaintiff’s apartment. At the end of the 30 to 40-foot walk was a short flight of four steps leading to a small platform, which was immediately outside of the door of plaintiff’s apartment. The platform, the steps, and the sidewalk, which extended 30 to 40 feet, all faced and were immediately contiguous to the front yard of the building, which yard sloped down to the public sidewalk for a distance of approximately 15 to 18 feet.
Prior to October 1, 1956, an inspection of the premises was made by the city. Pursuant to the requirement of the city’s building department, cement work was redone on the steps and platform sometime between October 1 and October 10, 1956. During that time the workman assisted plaintiff over the new cement.
A contract had been let by Rollefson to a subcontractor [729]for the fabrication and installation of a railing around the platform and steps. This was to be done after all other work on the platform and steps had been completed.
On October 10, 1956, plaintiff had a friend, Louise Green, visiting her. Plaintiff and Louise Green were leaving plaintiff’s apartment. Plaintiff opened the door and held it for her friend to precede her, intending to follow immediately. Louise Green went out the door of apartment 2, stepped on the platform, made a right turn, went down the four steps and proceeded a distance of approximately 30 feet when she heard someone crying and, looking down, saw plaintiff lying on the public sidewalk. Louise Green did not know how plaintiff got to the sidewalk, nor could she recall the position of plaintiff’s body with reference to the platform or the small flight of four steps or any portion of the 30 to 40-foot sidewalk. Thus, it was impossible to determine from her testimony, or any other evidence, from what portion of the premises plaintiff commenced her fall.
Plaintiff claimed that she stepped out of the door onto the platform and turned so that she was facing the door; that the last she remembered was pulling the door closed; and that the next thing she knew she was in her own apartment suffering from injuries.
At the above-mentioned times the following ordinances of the city of Los Angeles were in force:
“Section 91.0315. (a) Certificate Required. In order to safeguard life and limb, health, property, and public welfare, every building or structure shall conform to the construction requirements for the Sub-group Occupancy to be housed therein, or for the use to which the structure is to be put, as specified....
“No building or structure or portion thereof shall be used or occupied until a Certificate of Occupancy has been issued therefor....”
“Section 91.3305, Subsection (g) . . . Every exterior stairway shall have a handrail on the outer edge. Stairways more than four feet (4') in width shall be provided with handrails on each side.”
“Section 91.4404 (a) Guard Rails Required. Where a floor, roof or deck is accessible from a stairway or doorway and the floor, roof or deck is more than four feet (4') above the adjoining ground or floor level, a protective guard rail shall be provided in such a manner as to separate completely the doorway from the edge of the floor, roof or deck and also
[730]enclose all traffic lanes and all equipment requiring periodic servicing. ’ ’
The trial court found that defendants' were negligent in failing to provide handrails or guardrails for the steps and platform by the door.
The court also found (1) that the absence of handrails or guardrails did not cause plaintiff to be catapulted or thrown down a decline to the sidewalk or cause her to sustain severe or any personal injuries, and (2) that the absence of said handrails or guardrails, or the presence of any dangerous or hazardous condition for which defendants or either of them were responsible or accountable, was not a direct or proximate cause of any fall or other incident which caused injury to plaintiff. It entered judgment accordingly in favor of defendants.
This is the sole question necessary to determine: Does the record disclose that as a matter of law there was no evidence to sustain the trial court’s finding that the proximate cause of plaintiff’s injury was not the absence of handrails or guardrails, or any other act of defendants, or either of them?
No. These principles are here controlling:
1. The burden rests on an appellant (plaintiff in this ease) to show the insufficiency of the evidence where findings arc assailed on appeal as not supported by the evidence. (Nichols v. Mitchell, 32 Cal.2d 598, 600 [197 P.2d 550] ;1 Munns v. Stenman, 152 Cal.App.2d 543, 555 [4] [314 P.2d 67] [hearing denied by the Supreme Court] ; Sealite, Inc. v. Finster, 149 Cal.App.2d 612, 619 [7] [309 P.2d 51] ; Barlin v. Barlin, 145 Cal.App.2d 390, 393 [2]-[3] [302 P.2d 457]; Linehan v. Linehan, 134 Cal.App.2d 250, 255 [4] [285 P.2d 326] [hearing denied by the Supreme Court] ; Helm v. Hess, 131 Cal. [731]App.2d 251, 255 [280 P.2d 155]; Wallace v. Thompson, 129 Cal.App.2d 21, 22 [1] [276 P.2d 108]; Kirchnavy v. Levet, 127 Cal.App.2d 586, 588 [2] [274 P.2d 161]; Rosati v. Heimann, 126 Cal.App.2d 51, 54 [2] [271 P.2d 953]; Furst v. Scharer, 119 Cal.App.2d 605, 610 [5] [260 P.2d 198) ; Industrial Indem. Co. v. Golden State Co., 117 Cal.App.2d 519, 538 [17] [256 P.2d 677]; Curtiss v. McGowan, 109 Cal.App.2d 436, 438 [240 P.2d 997]; Trancoso v. Trancoso, 96 Cal.App.2d 797, 798 [2] [216 P.2d 172]; Cleverdon v. Gray, 62 Cal.App.2d 612, 619 [8] [145 P.2d 95] [hearing denied by the Supreme Court] ; Estate of Comino, 55 Cal.App.2d 806, 810 [1] [131 P.2d 599] ; Bedford v. Pacific S. W. Corp., 121 Cal.App. 162, 163 [1] [8 P.2d 558] ; Bayside Land Co. v. Dabney, 90 Cal.App. 126, 130 [4] [265 P. 566] [hearing denied by the Supreme Court].)
2. In order to warrant a judgment for negligence, the plaintiff must prove (i) that the defendant has committed a wrongful act and (ii) that said wrongful act was the proximate cause of plaintiff’s injury. It is not sufficient that the evidence raises merely a conjecture, a suspicion, or speculation that the defendant has committed a wrongful act.2
[7323]. Where no evidence, or insufficient evidence, is introduced on an issue, the finding on that issue must be against the party who has the burden of proof. (Rancho Santa Margarita v. Vail, 11 Cal.2d 501, 543 [15] [81 P.2d 533]; Estate of Mc-Kenna, 143 Cal. 580, 592 [77 P. 461] ; Walbergh v. Moudy, 164 Cal.App.2d 786, 790 [2] [331 P.2d 234] [hearing denied by the Supreme Court]; Sullivan v. Kantel, 124 Cal.App.2d 723,725 [2] [269 P.2d 175].)
Applying the foregoing rules to the facts in the present ease, the record discloses that there was a question of fact presented to the trier of fact, to wit, was defendants’ failure to provide protective handrails or guardrails the proximate cause of plaintiff’s injuries? The trier of fact found that it Avas not. This finding is supported by the record, for these reasons:
First: The agreed statement of fact contains the following: “. . . there is no evidence in the entire record showing or tending to show the cause of plaintiff’s injuries.”3
[733]Where there is an agreed statement of fact, the appellate court will assume for all purposes of reviewing the action of the trial court that the agreed statement contains a correct statement of what took place. (McMullen v. Saunders, 138 Cal.App.2d 554, 555 [1] [292 P.2d 282] [hearing denied by the Supreme Court].)
In view of the foregoing stipulation as to the facts, the trial court’s finding of fact in favor of defendants is supported by the record.
Second-. Plaintiff testified “. . . she stepped out of the door on to the platform, turned so that she faced the door, and claims that the last thing she remembers is pulling the door closed. She claims that the next thing she knew she was in her own apartment, which was after the accident had occurred, and after she had been injured. ’ ’
Therefore, under rules 2 and 3, supra, plaintiff failed to sustain the burden of proof in the trial court of establishing that defendants’ negligent act was the proximate cause of her injury.
So far as the record discloses, the proximate cause of plaintiff’s fall remains unknown, the cause thereof being merely a matter of conjecture, suspicion, or speculation. So far as the record discloses, she may have fainted, or deliberately jumped, or been shoved off the porch or walk; or her injury may have been proximately caused by a variety of other acts.
Likewise, the record is devoid of any evidence showing where plaintiff left the walk, which was between 30 and'40 feet in length.
[734]A plaintiff cannot recover where the facts go no further than to establish a possibility that a defendant’s negligence was the proximate cause of his injury. (See Petersen v. Lewis, 2 Cal.2d 569, 572 [2] [42 P.2d 311]; Hill v. Matthews Paint Co., 149 Cal.App.2d 714, 724 [11] [308 P.2d 865] ; Spencer v. Beatty Safway Scaffold Co., 141 Cal.App.2d 875, 882 [4]-[5] [297 P.2d 746]; McKellar v. Pendergast, 68 Cal.App.2d 485, 489 [4] [156 P.2d 950].)
Clearly, plaintiff failed to sustain in the trial court the burden of proof incumbent upon her to show that any negligent act of defendants was the proximate cause of her injury. Therefore, an essential element of her case was not proven, and the trial court’s finding that defendants’ negligent act was not the proximate cause of her injury is fully sustained by the evidence.
From the foregoing it is evident that plaintiff has failed to sustain the burden of proof required by rule 1 of showing that the finding of the trial court is, as a matter of law, contrary to the facts disclosed by the record and therefore not sustained by the evidence.
Schauer, J., and Spence, J., concurred.
The petition of respondent Herbert Hischemoeller for a rehearing was denied November 3, 1959. White, J., did not participate therein. Schauer, J., Spence, J., and MeComb, J., were of the opinion that the petition should be granted.
In Nichols v. Mitchell, supra, p. 600, this court said: “As ground for reversal defendants urge the insufficiency of the evidence to sustain the findings that the realty involved was their community property, and not the separate property of Mrs. Mitchell. Such contention requires defendants to demonstrate that there is no substantial evidence to support the challenged findings. As was stated in the oft-cited case of Crawford v. Southern Pacific Co., 3 Cal.2d 427, at page 429 [45 P.2d 183] : ‘. . . the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradieted,’ which will support the findings, and when ‘two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.’ (See, also, Raggio v. Mallory, 10 Cal.2d 723, 725 [76 P.2d 660]; Fischer v. Keen, 43 Cal.App.2d 244, 248 [110 P.2d 693]; Laherty v. Connell, 64 Cal.App.2d 355, 357 [148 P.2d 895]; Wuest v. Wuest, 72 Cal.App.2d 101, 104 [164 P.2d 32].) ’’
In Nunneley v. Edgar Hotel, 36 Cal.2d 493, 498 [225 P.2d 497], this court said: “Furthermore, no liability can be predicated upon noncompliance with a statutory command if the act or omission had no causal connection with the plaintiff’s injury. (Blodgett v. B. H. Dyas Co., 4 Cal.2d 511, 513 [50 P.2d 801]; Wohlenberg v. Malcewicz, 56 Cal.App.2d 508, 512 [133 P.2d 12].) Otherwise stated, ‘. . . the act or omission must proximately cause or contribute to the injury.’ (Hitson v. Dwyer, 61 Cal.App.2d 803, 808 [143 P.2d 952].) In the Blodgett ease, the plaintiff sustained injury from falling down a stairway which, in violation of an ordinance, was not equipped with a center handrail. In affirming a judgment of nonsuit the court said: ‘ The evidence shows that the lack of the handrail was neither the proximate nor any cause of plaintiff’s fall. Any violation of the ordinance by the defendant would, therefore, be immaterial. ’ ’ ’
In Hill v. Matthews Paint Co., 149 Cal.App.2d 714, 723 [308 P.2d 865], the court said: “(1) To be entitled to a judgment based on negligence, plaintiff must prove that defendant's act of wrongful omission is the proximate cause of plaintiff’s injury. (Valdez v. Taylor Automobile Co., 129 Cal.App.2d 810, 821 [278 P.2d 91]; Holmes v. Moesser, 120 Cal.App.2d 612, 614 [262 P.2d 27].) (2) The burden of proof devolves on plaintiff to show the causal connection between the alleged negligence and the resulting injury. (Petersen v. Lewis, 2 Cal.2d 569, 572 [42 P.2d 311]; McKellar v. Pendergast, 68 Cal.App.2d 485, 489 [156 P.2d 950].) (3) Where the negligence proved is not fastened to the particular injury for which recovery is sought, ‘the case stands exactly as if no negligence had been proven.’ (Puckhaber v. Southern Pac. Co., 132 Cal. 363, 364 [64 P. 480] ; Spencer v. Beatty Safway Scaffold Co., 141 Cal.App.2d 875, 880 [297 P.2d 746]; Davis v. Lane, 24 Cal.App.2d 400, 405 [75 P.2d 565].) (4) The question of whether plaintiff has sustained the burden of establishing that defendant’s neg[732]ligence was the cause in fact from which his injury resulted is ordinarily for the trier of the facts. (Basin, Oil Co. v. Baash-Ross Tool Co., 125 Cal.App.2d 578, 603 [271 P.2d 122]; Been v. Lummus Co., 76 Cal.App.2d 288, 294 [173 P.2d 34].) (5) When there is evidence that the injury may be reasonably attributed to a cause for which no liability attaches to defendant, it is proper to find against plaintiff on the issue of negligence. ’ ’
In Prosser on Torts (2d ed. 1955), page 222, it is said: “On the issue of the fact of causation, as on other issues essential to his ease, the plaintiff has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. ’ ’
(See to the same effect Burtt v. Bank of California Nat. Assn., 211 Cal. 548, 551 [2] [296 P. 68]; Marsiglia v. Dozier, 161 Cal. 403, 405 [119 P. 505]; Puckhaber v. Southern Pacific Co., 132 Cal. 363, 364 et seq. [64 P. 480]; Towle v. Pacific Improvement Co., 98 Cal. 342, 346 [33 P. 207]; Holmes v. Moesser, 120 Cal.App.2d 612, 614 [1] [262 P.2d 27] [hearing denied by the Supreme Court]; Neuber v. Royal Realty Co., 86 Cal.App.2d 596, 630 [25] [195 P.2d 501] [hearing denied by the Supreme Court]; McKellar v. Pendergast, 68 Cal.App.2d 485, 489 [2a] [156 P.2d 950].)
On page 3 et seq. of the Agreed Statement appears the following: “On October 10, 1956, plaintiff, Dorothy Burdette, claims that she had a friend, Louise Green, visiting her. Plaintiff and Louise Green were leaving plaintiff’s apartment and plaintiff testified that she opened the door and held it for her said friend to precede her, intending to follow immediately thereafter. Louise Green went out the door of Apartment #2, which door entered into the apartment, stepped on the platform, made a right turn, went down the four steps and proceeded a distance of approximately 30 feet, at which time she heard someone crying, and [733]then looked down and saw the plaintiff down on the public sidewalk. Louise Green did not know how plaintiff, Dorothy Burdette, got to the sidewalk. The plaintiff, Dorothy Burdette, claimed that she stepped out of the door on to the platform, turned so that she was facing the door, and claims that the last she remembers is pulling the door closed. She claims that the next thing she knew she was in her own apartment, which vras after the accident had occurred, and after she had been injured. There is no testimony in the entire record showing how plaintiff, Dorothy Burdette, got to the public sidewalk; there is no testimony or evidence in the entire record to show from, what point plaintiff, Dorothy Burdette, left the upper or ground level of the apartment house, i.e., whether she left the upper level from the platform, from the steps, or from the private sidewalk, all of which abutted the sloping front yard; there is no testimony or evidence in the entire record tending to show at what place on the lower or public sidewalk the plaintiff was found; plaintiff ’s friend, Louise Green, was the only party who testified that plaintiff was on the public sidewalk, and she stated that she did not observe or remember whether plaintiff was in line with the platform, the steps, or the private sidewalk which abutted the top of the slope; there is no evidence in the entire record showing or tending to show the cause of plaintiff’s injuries. ’ ’ (Ialies added.)