Shaw v. Colonial Room

California Court of Appeal Dec 7, 1959 No. Civ. 18477Published

Before: Stone

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Holding. The trial court erred in directing a verdict for the defendants because the questions of whether the proprietor exercised ordinary care in inspecting the premises and whether the plaintiff was contributorily negligent were issues of fact for the jury.

Issues

Whether the evidence regarding the proprietor's failure to inspect the restroom created a question of fact for the jury regarding negligence.
Whether the plaintiff's use of the restroom with knowledge of the dangerous condition constituted contributory negligence as a matter of law.
Whether the doctrine of 'momentary forgetfulness' presented a question of fact for the jury regarding the plaintiff's conduct.

Disposition. reversed

Quotations verified verbatim against the opinion

“The court erred in disregarding the plaintiff’s testimony and finding by its directed verdict that defendants were not guilty of negligence as a matter of law.”

“Whether or not appellant’s use of the toilet, knowing the condition of the floor, constituted negligence, is a question of fact.”

STONE, J. pro tem.

Appellant, Dorothy Shaw, brought an action to recover damages for personal injuries received' as the result of a fall in the restroom of the Colonial Room, a

[847]

tavern owned and operated by the respondents. Appellant had been a patron of the bar for several years and on the night in question dropped in for a drink about 5:30 p. m. The accident occurred at approximately 8 p. m. and during the interim, appellant had consumed two vodka martinis and two vodka collins. She left her stool at the bar and walked to the ladies restroom, and upon entering observed water on the floor and a piece of wet toilet paper at about the position where she would have to stand. It being a public toilet, appellant elected not to sit on the seat, but to “squat,” placing her weight upon her two feet. The toilet paper container was fastened on the left wall of the cubicle, and since appellant is right-handed, she reached across with her right hand to obtain some toilet paper. Upon doing so, she shifted the balance of her weight to her right foot, it slipped on the wet toilet paper, and she fell to the tile floor, breaking her leg.

The trial was had before a jury and respondents moved for a nonsuit and a directed verdict, both of which were denied by the court. The jury, however, was unable to agree and was discharged. Nine days thereafter, the trial court, on its own motion, directed a verdict in favor of the defendants, pursuant to section 630 of the Code of Civil Procedure, and entered judgment accordingly. The pertinent portion of section 630 of the Code of Civil Procedure reads as follows:

“When a motion for a directed verdict, which should have been granted, has been denied or for any reason not granted, and the jury for any reason, has been discharged without having rendered a verdict, then within 10 days after the discharge of the jury, the court on its own motion, or, after said 10-day period, upon motion, notice of which was given within said 10-day period, may order judgment to be entered in accordance with the motion for a directed verdict.”

Appellant contends the court erred in granting the directed verdict, in that she adduced evidence substantial in character, which if believed by a jury would support a verdict in her favor. The rule governing the granting of a directed verdict is summarized in

Shaw v. Colonial Room

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