Bowater v. Tassey

WILSON, J.

Since there is substantial evidence in the record that would have supported a verdict in favor of appellant, the judgment of nonsuit from which the appeal is taken must be reversed.

In

Weck

v.

Los Angeles County Flood Control District,

80 Cal.App.2d 182 [181 P.2d 935, 940], we set forth at length the rules governing the granting of nonsuits and motions for directed verdicts and they need not be repeated here.

The facts disclosed by the evidence are as follows: Respondent Tassey was the owner of a dwelling house which she leased to Mr. and Mrs. Wallich, son-in-law and daughter of appellant. Miss Tassey employed respondent Deyo to paint the residence inside and outside. There is a question as to whether Deyo was an employee of Miss Tassey or an independent contractor. The evidence on this point is conflicting and the answer should have been left to the determination of the jury. Deyo began his work in September, 1943, but because of ill health did not complete it until May or June, 1944. There is evidence that the work was not completed until about June 1st, but Deyo claims that his work was finished on April 16, 1944. The accident causing appellant’s injuries occurred on May 16, 1944.

At the rear of the house there was a gravel or dirt pathway leading from the edge of the driveway to the back door of the house. The pathway was about 1% feet from the wall and was separated from the house by a row of plants. On the rear wall of the house ivy vines extended from the ground to the roof, a distance of 8 or 9 feet. Miss Tassey testified that when Deyo began his work she did not specifically mention to him the removal of the vines but told him to paint the house, and took it for granted that he would take the vines from the wall and do whatever was necessary to complete the work. Before beginning the painting Deyo removed the vines from the side of the house and placed them in the narrow space between the wall and the pathway. Some of the ends of the vines extended into the path. .Apparently the roots were not disturbed, since it is in evidence that the vines continued to grow between the time of their

[653]