Paskil v. Leigh Rich Corp.

HERNDON, J.

Defendants appeal from an order granting plaintiff’s motion for a new trial. The sole ground upon which the new trial was granted was that error in law was committed in giving the “unavoidable accident” instruction (BAJI No. 134) condemned (except in special situations) in

Butigan

v.

Yellow Cab Co.,

49 Cal.2d 652 [320 P.2d 500], Defendants urge that under the peculiar facts of the instant case (1) the giving of the instruction did not constitute error, and (2) if there was error, it was not prejudicial.

Plaintiff seeks recovery of damages for personal injuries allegedly suffered as the result of a fall sustained while engaged in the sport of bowling. He charges defendants with negligence in the maintenance of the bowling establishment and attributes his fall to a defect in the floor of the alley or lane which he was using at the time. At the trial he introduced evidence tending to prove that his fall was caused by a patch of plastic wood filler in the approach to the lane 3 to 5 inches in length, about % inch in width and l/16th to l/8th inch higher than the surrounding wood.

Defendants denied the material allegations of the complaint and alleged the defense of contributory negligence. They introduced evidence tending to prove that the alleged defect was not in existence at the time in question, and that plaintiff’s fall was caused solely by the inept and improper manner in which he made his approach to the alley preparatory to delivering the ball.

The jury returned a verdict for defendants. The court thereafter granted plaintiff’s motion for a new trial solely upon the ground above indicated. Thus, the determinative issue is whether the trial judge reasonably could have regarded the giving of the “unavoidable accident” instruction as prejudicially erroneous.

[490]

The rule of law governing our review of the order here challenged was recently stated in

Shaw

v.