Levin v. Union Oil Co.

[403]

WOOD (Fred B.), J.

J.The main question is whether or not the allowance of defendant’s instruction on unavoidable accident was prejudicially erroneous.

Plaintiff slipped, fell and injured himself at defendant Welch’s

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gas and oil service station. Plaintiff was a regular customer of defendant and they were close friends. Plaintiff was a county supervisor and was planning the appointment of defendant as a member of the county planning commission. They had just taken a trip through plaintiff’s supervisorial district to give plaintiff a chance to inspect it and permit defendant “to get acquainted with the job he was going to get.” This inspection trip was completed and plaintiff was taking defendant to the latter’s home. They stopped at the service station to phone their respective wives. They arrived about 7 p. m. March 25, 1954. It was dark or dusk.

Bach observed that the attendant on duty was engaged in cleaning up, with a mop in hand. Plaintiff parked the car and entered defendant’s office to use the telephone, a private phone (not a public “pay” phone) available to only a few of defendant’s customers including plaintiff.

Upon leaving the office several minutes later plaintiff noticed that the area in front of him looked damp. He thought it was probably water. He noticed that the attendant was working in a different area than when plaintiff arrived. He said he did not exercise any more care than he would have exercised if the surface had been dry. As he walked out of the doorway, he took about two steps when his left foot went out from under him, causing him to fall backwards and land on his left arm.

This was on the concrete, not the asphalt, surfaced portion of the station. Defendant used a solvent for the cleaning of the concrete surface. It is applied directly to the surface by means of a mop which has been dipped into a bucket containing the solvent. It takes five minutes for the solvent to dry if rice hulls are used after the solvent is applied; otherwise, fifteen minutes.

An expert called by plaintiff testified that the cleaning solvent used by defendant would cause a rubber surface to become “very much more slippery.” (Plaintiff wore rubber heels.) Defendant called an expert who testified that the coefficient of friction was not reduced by the application of the solvent. He conceded that if the solvent were applied