Clarke v. Foster's Inc.

WARD, J.

This is an appeal from a judgment in favor of defendants, rendered by the court sitting without a jury, in a personal injury action based upon their alleged negligence in failing to maintain the doors of a sidewalk elevator in a condition to comply with section 238 of the San Francisco Building Laws known as Ordinance 1008 (New Series).

The plaintiff alleged that she slipped, fell and was injured while walking over said sidewalk elevator, negligently maintained, in front of defendants ’ place of business. The sidewalk in which said elevator was installed slopes slightly from west to east, in which direction the plaintiff was walking. It had been raining and the sidewalks were wet. There is testimony that while the elevator doors, studded with buttons a few inches apart, conform fairly evenly with the general slope of the sidewalk, there is, at the spot where plaintiff fell, at the east side of the easterly door, between the hinges, a slight unevenness between the leaf of the door and the rim thereof, also a slight unevenness between the rim and the sidewalk proper, the total variation being 7/16 of an inch from absolutely flush with the sidewalk. Also, where the two doors come together, and extending over part of the middle of the eastern door is a slight bulge varying from 3/16 to 3/8 of an inch. It is plaintiff's contention that when crossing the elevator, about in the middle, she slipped on this bulge a distance of approximately six inches and then caught her foot in the 7/16 of an inch variation at the east side of the easterly door.

Section 238 of said building ordinance in part provides: “It shall be unlawful for any person, firm or corporation to construct, operate or use, or cause to be constructed, operated or used any sidewalk elevator unless the ... sidewalk openings of such sidewalk elevators, be covered with substantial iron doors . . ., as nearly flush with the upper surface of the sidewalk as will permit proper drainage.”

[413]

The court found that the variations “are minor and trivial defects . . ., that neither of said defendants were guilty of negligence” and “that any injuries received by plaintiff at the time and place alleged in plaintiff’s complaint were proximately contributed to by the negligence and carelessness of plaintiff herself in the premises.”