Sommerfield v. Miratti

SHAW, J. pro tem.

The defendants Frank Miratti, Inc., a corporation, and Prank Miratti, Jr., appeal from a judgment in favor of plaintiff. At all times material here, the defendant corporation maintained and operated a hotel and the other defendant named was its president and general manager and resided in the hotel. In this hotel there was a stairway leading up from the main lobby floor to a mezzanine floor upon which was situated a ladies’ rest room. The plaintiff, who was a business invitee of the defendants, ascended this stairway, went to the rest room, and on her return started down the stairs to the lobby. On the second step her feet slipped out from under her and she fell, sliding and bumping, to the bottom of the stairs, and thus received personal injuries for which she sued and recovered in this action. In her complaint she alleged that the defendants negligently caused the steps to be slippery and unsafe for use by waxing and polishing them. In addition to some denials the defendants alleged that the plaintiff was guilty of contributory negligence in her use of the stairs.

[452]

On this appeal the defendants do not deny the sufficiency of the evidence to show negligence on their part, so that matter need not be discussed. They make but two contentions: first, that plaintiff knew the condition of the stairway before and when she used it and for that reason she assumed the risk and was guilty of contributory negligence as a matter of law in using it; and second, that because of this contributory negligence the court should have directed a verdict for defendants. Our conclusion that the first contention cannot be sustained eliminates the second from consideration.

In support of their contention defendants cite and rely chiefly upon

Mautino

v.

Sutter Hospital Ass’n

(1931), 211 Cal. 556 [296 Pac. 76], where the court held that a nurse using a hospital floor which she knew to be waxed and slippery was guilty of contributory negligence as a matter of law. The nurse was not an employee, but an invitee, of the hospital, and, in stating the rule regarding the liability of the owner or occupant of land or buildings to an invitee, the court there used this language, upon which defendants rely, taken from another authority: “An owner or occupant of land who by invitation, express or implied, induces or leads others to go upon premises for any lawful purpose is liable for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them. . . . The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. . . . There is no liability for injuries from the dangers that are obvious, or as well known to the person injured as to the owner or occupant.” (211 Cal. 560-1.) It appeared from the testimony of the plaintiff in that ease that she had been using the floor on which she fell for a day and part of the next day immediately prior to her fall, that during all that time she had noticed that the floor was so slippery that she could not keep her feet, and that she had complained of this condition to the head nurse. After stating this testimony, the court said, regarding the contributory negligence of plaintiff there: “It is clear from the plaintiff’s testimony that she had