Hechler v. McDonnell

MOORE, P. J.

This is an appeal by defendant from a judgment, after verdict, in favor of plaintiffs in the amount of $3,500.

About 2:30 P. M. on July 18, 1938, plaintiffs, husband and wife, entered the restaurant of defendant, walked across a light colored terrazzo floor to stools located upon a black colored terrazzo platform which was 8 to 10 inches above the floor level. Plaintiff Minnie Mae mounted the platform, oc6.

[517]

cupied a stool next to her husband, ordered and ate her lunch. While thus engaged in consuming her viands she observed a man enter from the kitchen and sweep the floor and platform. He retraced his steps to the kitchen, returned with bucket and mop and proceeded to mop the floor and platform where plaintiffs were seated. Mrs. Heehler finished her meal, turned her stool to the right and, with both feet on the platform, attempted to rise. Before she could gain her equilibrium both feet slipped from beneath her and she fell, fracturing her right hip.

Appellant contends that (1) plaintiff was negligent as a matter of law in having full knowledge of the wet platform; (2) that it was not established that appellant failed to exercise that degree of care required of a public house for the protection of invitees; and (3) that the giving of certain erroneous instructions to the jury constituted prejudicial error.

(1) The jury was warranted by the evidence in finding that Mrs. Heehler was not negligent. She never testified that she knew the floor was wet at the time she fell. She knew the janitor had mopped the floor while she ate, but there is no positive proof that she knew it was wet as she began to arise. That it was wet, that of its wetness she was unconscious, that defendant was negligent in not warning her, and that such negligence was the sole proximate cause of her injuries, were inferences that might fairly have been drawn from the evidence. (Hamilton v.

Pacific Electric Ry. Co.,

12 Cal. (2d) 598 [86 Pac. (2d) 829];

Raggio

v.

Mallory,