Scholz v. Hilbert

KNIGHT, J.

Plaintiffs appeal from a judgment in favor of defendant after trial before the court without a jury, in an action for damages for personal injuries which the plaintiff Mrs. Margaret Scholz claimed to have sustained in falling on a concrete sidewalk in front of defendant’s shoe store on the main street in Monterey. The cause of action was based on allegations to the effect that the sidewalk was wet and slippery and therefore dangerous, and was made so by the defendant’s negligence. The trial court found from the evidence, however, that plaintiffs had not established any negligence on the part of defendant and further found that the accident was due to the failure of Mrs. Scholz to exercise ordinary care for her own safety while walking along the sidewalk. As ground for reversal, plaintiffs contend that the evidence is insufficient to sustain said findings.

It is well settled, however, that in eases such as this, where the trial court is called upon to determine questions of negligence and contributory negligence, all intendments are in favor of its findings and they will not be overthrown on appeal unless it is manifest that the conclusions reached by the trial court cannot be sustained on any rational view of the testimony. If there is any competent evidence to support the findings, they will not be disturbed, or if two different inferences can be reasonably and properly drawn from the facts proved, the findings of the trial court are binding on the reviewing court. In other words, the trial court’s findings are conclusive on appeal unless it can be held as a matter of law that the evidence is without substantial conflict and the only reasonable inference to be drawn therefrom is contrary to the findings; and it is quite evident that in the present case the factual situation is such that it cannot be so Held..

The accident happened around 9 o’clock in the morning, on a clear, dry day. About half an hour earlier, when defendant arrived at his store to open it for the day’s business, he noticed that the sidewalk immediately in front of one of the show windows and the tiling at the base of the' window had been befouled by dogs, and he removed the offensive eondi

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tion with a broom and about a pint and a half of plain wat.er, which he took from a bucket, following which he used a mop to remove whatever water was left on the sidewalk, so that only a few damp spots remained; and it was at or near these damp spots that Mrs. Scholz fell. She was walking with her husband at the time, and they were in a hurry. She was fifty years of age, short, and exceptionally heavy. According to the evidence she was only five feet one and a half inches in height, and weighed 192 pounds; and she admitted that at some previous time she had sustained injuries from a fall. There were no other pedestrians on the sidewalk near the Scholzes to obstruct their view or progress, and as stated, they were hurrying along. Mr. Scholz was a step or two ahead of his wife, and she was trying to keep up with him. She was talking to him at the time, and she admits she was not watching her step or paying any attention to the sidewalk. The evidence further shows that after defendant had removed the obnoxious conditions created by the dogs he got some fresh water in the bucket and started to wash some of the windows and that in doing so he used a wet rubber sponge and a rubber “squeegee” window cleaner attached to a six-foot pole, and less than two quarts of water; and that in two places the water trickled about half way across the sidewalk; and it was while defendant was thus engaged in washing the windows that the accident happened. The testimony shows, however, that plaintiff fell several feet distant from said trickles of water, and that they could not have contributed in any way to the cause of the accident.