Cacciaguidi v. Elliott

Opinion

ROTH, P. J.

Appellant, Barbara Cacciaguidi (Barbara), appeals from a judgment of nonsuit in favor of respondents Elliott Janitorial Service, Inc. (Elliott) and Theodore Van Alen, individually and doing business as Cleansweep Co. (Cleansweep).

On December 20, 1969, Barbara, an employee of Calmar, Inc. (Calmar), suffered personal injuries as a consequence of a slip and fall on a substance she variously described as “a greasy, grimy, gooey grime . . . grease and muck," in the parking lot maintained by Calmar for its employees as she walked in a sprinkling rain from her parked car to the Calmar factory.

She filed this action against respondents predicated upon the negligent failure of respondents to fulfill an alleged duty respondents had assumed in a contract between themselves and her employer Calmar.

Calmar is not joined as a party defendant for the obvious reason that Barbara’s right to relief against Calmar is embraced within her right to workmen’s compensation.

When a judgment of nonsuit is under review' it is settled that this court must: accept plaintiff’s evidence; indulge in plaintiff’s favor every legitimate inference that may be drawn therefrom; and disregard conflicting evidence.

(Connor

v.

Great Western Sav. & Loan Assn.

(1968) 69 Cal.2d 850, 857 [73 Cal.Rptr. 369, 447 P.2d 609, 39 A.L.R.3d 224];

Raber

v.

Tumin

(1951) 36 Cal.2d 654, 656 [226 P.2d 574];

Blumberg

v.

M. & T. Incorporated

(1949) 34 Cal.2d 226, 229 [209 P.2d 1].) Plaintiff, citing

Hartford Acc. & Indent. Co.

v.

Bank of America

(1963) 220 Cal.App.2d 545, 547 [34 Cal.Rptr. 23], seeks to embrace within the settled rule evidence which might have been admitted if the trial had continued and the motion for nonsuit had been denied.