Van Wye v. Robbins

McCOMB, J.

Prom a judgment in favor of plaintiff after trial before the court without a jury in an action to recover damages resulting from personal injuries, defendant Al Robbins appeals.

The evidence being viewed in the light most favorable to plaintiff (respondent), the essential facts are these:

March 18, 1940, plaintiff parked his automobile in a service station operated by Sidney Smilo, which service station was adjacent to the market building of the Bi-Rite Market operated by defendant A1 Robbins. In April of 1939 Mr. Robbins had entered into an oral agreement with Mr. Smilo whereby the customers of Mr. Robbins’ market were allowed to park their cars free upon the service station premises. In consideration for this right defendant Robbins paid Mr. Smilo a monthly rental. On the wall of the market building adjacent to the parking area said defendant caused to be printed the words “Free Parking.” After leaving his car on the parking space above described, plaintiff, a gentleman eighty years of age, together with his wife, entered Mr. Robbins’ market, purchased merchandise which filled two shopping bags and, with one on each arm (which obstructed his view of the ground ahead of him to some extent) started to return

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to Ms car. While walking across the parking area, plaintiff’s wife noticed a grease spot on the surface of the lot. The spot consisted of heavy, black grease, approximately one-eighth of an inch thick and five inches in diameter, which in all probability had fallen from a car which was being greased on a rack located on the service station premises. She turned to warn plaintiff, but before she had done so he stepped upon the grease spot, fell, and sustained personal injuries.

Defendant Robbins relies for reversal of the judgment on these propositions:

First: Assuming that the grease upon which plaintiff stepped and fell was left there negligently by the proprietor of the parking lot or his

agents,

such negligence could, not be imputed to defendant Bobbins.

Second: There is no substantial evidence to sustain a finding that Bobbins had either actual or constructive notice of the dangerous condition of the parking lot.