Nelsen v. Jensen

[271]

DRAPER, J.

This case presents the odd situation of two appeals, one from each of two purportedly separate judgments entered in this single personal injury action. The action was commenced more than a year after the accident, and plaintiff pleaded an estoppel to assert the statute of limitations. On defendants’ motion, the issue raised by this allegation and defendants’ plea of the statute of limitations Avas separately tried (Code Civ. Proc., § 597), and jury verdict returned in favor of plaintiff. Despite the provision of section 597, judgment was entered in favor of plaintiff upon the issue of the statute of limitations. The action was then tried, before a jury, on the merits. At the close of plaintiff’s case, motion for nonsuit was granted. Although the record on appeal contains no minute entry to that effect, the parties have stipulated that such minute order was made. Plaintiff appeals from the judgment of nonsuit, and defendants appeal from the purported judgment on the issue raised by the plea of the statute of limitations.

Plaintiff and her husband were guests in the house of defendants, her brother and sister-in-law. They occupied a bedroom at one end of an upstairs hall. The bathroom was at the opposite end of the hall, and at one side of the hallway was the head of the stairs leading down to the first floor. A rug, some 6 feet long by 32 inches wide, was on a rubber mat on the floor of the hall near the top of the stairs. At about 6 a. m. on the fourth day of the visit, plaintiff went from the bedroom to the bathroom. As she neared the bedroom door on her return, she fell some four steps down the stairs to a landing, sustaining serious injuries. Asked “what happened?” she testified “I don’t know. Before I knew it I Avas downstairs.” To the question “Did your legs go out from under you?” she answered “No. I don’t think so. They never have before.” A light was burning in the center of the hallway ceiling. Plaintiff’s husband, when he went to her aid, noticed that some 6 inches of the hall rug hung over the top of the stair. Although defendants question the propriety of an inference that plaintiff fell because the rug slipped as she walked over it, we assume, for purposes of this opinion only, that the evidence would support such inference.

It is conceded that plaintiff Avas a “social guest,” and that defendants therefore owed her only the duty owed to a gratuitous licensee.