Oliver v. Stoltenberg

JAMES, J.

Appeal was taken in this cause from the judgment entered against defendant and also from an order denying her motion for a new trial.

The cause of action was one for damages for personal injuries alleged to have been suffered by the plaintiff as a result of the negligent acts of defendant.

Appellant was the owner of an apartment house in the city of Los Angeles and respondent was a tenant therein. Being desirous of having the house raised to a greater height above the surface of the ground, appellant employed one Young, a contractor, to do the work and he commenced the task on Saturday, the last day of September, 1911. On Sunday morning at about ten o’clock the building had been raised at the front about five inches. As it had stood theretofore there were two cement steps leading from the porch at the front to the sidewalk and the top step was about one and one-half inches below the level of the porch. When the hotise was raised to the height of about five inches there ivas then created another step from the porch surface to the top of the first cement step, and a space was left where the riser is ordinarily placed. When the steps were in that condition plaintiff came out of the building and proceeded as she ordinarily did to reach the sidewalk, without noticing that the building had been raised. Not expecting to find the first cement step lower than it had previously been, her foot slipped and she fell, sustaining injuries for which the trial court awarded her damages in the sum of one thousand five hundred dollars. As to the facts just stated there was no dispute between the parties, and it was also agreed that the contractor Young was an independent contractor in his connection with the work, but that he had no duty to perform under his agree

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ment with appellant as to the steps; these latter he was not to molest or change. The court determined hy its findings all of the facts as they have been narrated, and further found that the change in the position of the porch at the time of the accident to respondent “was not apparent to any one passing from said porch to said steps. ’ ’

Upon such a state of the record it is contended on the part of appellant that there was not sufficient evidence to show that appellant had committed any negligent act which caused respondent’s injuries, and second that it appeared that respondent was guilty of negligence which contributed to cause the accident. It is first claimed that upon the facts as presented to the trial court and shown in the statement on motion for a new trial, it became a question of law as to whether or not appellant had been guilty of negligence and that such a question is here presented for review. It is an unusual case indeed where the facts and circumstances surrounding the happening of an event involving a question of negligence present a case where it can be said without any qualification that all men, considering the matter in a rational and reasonable light, would agree as to whether ordinary care had been used by the person charged with negligence. “The question of negligence must be submitted to the jury as one of fact, not only where there is room for difference of opinion between reasonable men as to the existence of the facts from which it is proposed to infer negligence, but also where there is room for such a difference as to the inferences which might fairly be drawn from conceded facts. Where this is the case, the issue must go to the jury, no matter what may be the opinion of the court as to the value of the evidence or the credibility of the witnesses. So, if the issue narrows itself to a distinction between what is reasonably safe and what is not so, the question is emphatically one for the jury. It is for the court to say whether there is any evidence in the case from which negligence might reasonably be inferred; and then it is for the jury to say whether, from the facts thus proved, negligence ought to be inferred.” (1 Shearman and Redfield on Negligence, par. 54.)