Decker v. S. H. Kress Co.

DOOLING, J.

Plaintiff Kurtz Decker brought an action to recover damages for personal injuries received as the result of a fall in defendant’s store. Pacific Indemnity Company intervened to recover workmen’s compensation benefits paid to plaintiff. Judgment was entered on a jury verdict in favor of plaintiff for $50,000 out of which plaintiff in intervention was granted recovery by way of reimbursement in the sum of $12,882.53. Defendant appeals.

Appellant operated a department store in San Francisco. Respondent started work in the store on September 24, 1953, as a demonstrator for Shontex products and appellant received a percentage of the sale in return for furnishing counter space.

Respondent performed his demonstrations in a rectangular counter area formed by four counters. Each of the counters was 3 feet wide and the working area bounded by these counters measured 2 feet by 19 feet. Respondent worked at one end of this rectangle behind the counter facing to the east. To his right was an opening, about 1 foot wide permitting ingress and egress from the work area.

When respondent arrived on September 24 he found a microphone on top of the counter and an amplifier underneath the counter. The microphone was connected to the am

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plifier by approximately 15 feet of electrical wire and the amplifier was connected to an electrical outlet by approximately 6 to 8 feet of electrical cord. This outlet was located in the center of a baseboard in back of the counter.

Although respondent had worked in appellant’s store at the same counter for two years from 1948 to 1950 he had not then used a microphone. Prior to starting work at appellant’s store respondent had observed another demonstrator using the microphone at this counter with the amplifier placed on the counter.

Respondent placed the amplifier on the counter at a distance of about 4 feet from the electrical outlet. The excess cord from the microphone to the amplifier respondent pushed under the counter, but since the excess cord from the amplifier to the outlet was only about 3 feet it would not remain under the counter. Respondent did not attempt to fasten the excess cord up off the floor, nor to wrap the excess around the amplifier, nor did he request that it be fastened. He was aware of the cord and its position throughout the three days that he worked there.