Corbett v. Spanos

ZOOK, Acting P. J.,

pro tem.

This is an action for damages for physical injuries alleged to have been sustained by plaintiff through the negligence of defendants. Plaintiff appeals from a judgment for defendants entered upon an instructed verdict in their favor at the close of plaintiff’s evidence. The facts testified to were as follows: Defendant Spanos conducted a candy and light lunch business in a store owned by defendants Whitney and Wilson, where plaintiff was accustomed to take lunch. In the rear of the store there was a partition running across the width of the store, with a door in the center opening into a narrow and rather dark passageway, on the opposite side of which there was a room containing a toilet and wash-basin for the use of the young women employed in the store. There was a trap-door in the passageway with a flight of stairs leading.down to the base

[202]

ment where candy was made and stored. This stairway was frequently used by the employees when they wished to bring candy up from the basement. On the day of the accident plaintiff, having lunched at the store, asked one of the attendants if there was a dressing-room, and was shown to the toilet in question. The trap-door was closed at the time, and as it fitted-flush with the floor, there was nothing to indicate its existence to plaintiff, and she received no warning about it. While plaintiff was in the toilet some person whose identity was not shown on the trial, but presumably an employee of the store, lifted the trap-door and left it open. When plaintiff attempted to return to the outer store she did not notice the open trap-door, but in opening the partition door, which swung toward her, she stepped backward and through the trap-door and fell down the steps to the basement below.

We are of the opinion that the lower court correctly instructed the jury to bring in a verdict for the defendants upon the facts above set forth. While plaintiff was undoubtedly seriously injured by the fall, she could only recover damages therefor upon showing some breach by the defendants of a duty owing to her, and this she has failed to do. The law of California as to the duties owing by a proprietor of a store to his customers and to the public is settled by the cases of

Schmidt

v.