Richter v. Adobe Creek Lodge

143 Cal.App.2d 514 (1956) 299 P.2d 941 IRENE RICHTER, Respondent,

v.

ADOBE CREEK LODGE et al., Defendants; HENRY WAXMAN, Appellant.

Docket No. 16561. Court of Appeals of California, First District, Division One.

July 30, 1956. Cooley, Crowley, Gaither, Godward, Castro & Huddleson for Appellant.

Herron & Winn and John Wynne Herron for Respondent.

WOOD (Fred B.), J.

Plaintiff, a business invitee at defendant Waxman's recreational resort, sat down on the steps in front of a stage which was enclosed in front by a heavy [515] canvas curtain. A piano, pushed and pulled toward the front of the stage by two 13-year-old boys, went over the edge and onto plaintiff, to her serious injury.

Plaintiff obtained a verdict for $54,980 which was reduced to $42,500 as the condition for an order denying a new trial. Defendant's principal point in support of his appeal from the judgment and from an order denying his motion for judgment notwithstanding the verdict is that plaintiff failed as a matter of law to prove that her injuries were proximately caused by defendant's negligence.

The stage was enclosed at the rear and either side by a wall and covered with a roof. The boys entered out of curiosity and engaged in throwing a dart from wall to wall. It disappeared in the vicinity of the piano so they moved the piano away from the wall toward the center of the stage. Failing to find the dart, they undertook to move the piano back into place, one pulling and the other pushing. One of the boys said it at first moved a little hard, so they both tried a little harder and "finally it started moving." The other boy, asked if it moved rather freely as they went toward the front, said "No, sir, I don't believe so." As one of the boys expressed it, as one was pushing and the other pulling, "it sort of swerved around ... and then one of the casters went off, and it started falling." The other boy said "for some reason we got it too close to this first step here, and we misjudged the place and it started to topple over on one caster." Anne Sargent, one of the members of plaintiff's group testified that, hearing noises which attracted her attention (the noise of rolling, like skates or wheels), she opened the curtains at the front of the stage, saw the piano and on it a boy stretched out lying across the top of the piano. The other boy was in a "pushing position" behind one end of the piano.