Braun v. Vallade

LENNON, P. J.

This is an appeal from a judgment in plaintiff’s favor in an action for damages alleged to have been sustained by him by reason of his having fallen through an open and unguarded trapdoor in the floor of certain premises occupied and used by the defendants in the conduct of a saloon.

There is little, if any, disagreement between the parties respecting the main facts of the case. The defendants on the tenth day of July, 1914, were engaged in conducting a saloon known as the Minneapolis Bar on Market Street in the city and county of San Francisco. On said day the plaintiff entered the said place of business of the defendants for the purpose, according to his testimony, of using the toilet attached to and in the rear of the saloon. Having done this and returned to the barroom the plaintiff, not wishing, as he stated, to use the convenience of any place without some return, went to the bar and ordered a drink of beer; and having been served and begun to drink it he observed a picture upon the opposite wall of the saloon, and being interested in painting walked across to examine it, and in so doing fell into an open trapdoor, and was precipitated into the basement, suffering severe injuries. There is some conflict in the evidence as to whether the space in front of where the picture hung, and of which the trapdoor when closed formed a part

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of the floor, was a portion of the open or public area of the saloon; or was separated therefrom by a piano and other obstructions, indicating that it was private and not intended for public use; but in respect to this matter the plaintiff himself testified that there was no obstruction between the bar and the picture, and that he walked directly across the room toward it and to the open space into which he fell. There is also some evidence that upon the wall above the trapdoor there was a large cardboard sign reading “Private. Keep out”; but there was evidently some question as to whether this sign referred to the floor space in front of the picture partly occupied by the trapdoor when closed, or to the basement and entrance into it when the trapdoor was open. The jury resolved these doubts in the plaintiff’s favor, and we are not asked to review their discretion in respect to these conflicts in the evidence. The appellants, however, urge as their main contention in the case that the undisputed evidence does show that the plaintiff having entered upon the premises for the purpose indicated by his own testimony, became and was throughout the period of his presence there a mere licensee toward whom, as such, the defendant owed no duty other than that of refraining from causing him an injury by a willful or grossly negligent act. In support of this contention the appellants chiefly rely upon the case of