Bender v. Schneider

AGEE, J. pro tem.* This is an action for damages for personal injuries. The jury returned a verdict for defendant. Plaintiff’s motion for a new trial was granted and defendant appeals from such order. Plaintiff then cross-appealed from the judgment entered upon the verdict.

Defendant is the owner of real property improved by a one-story duplex. Between the two units is a double garage. A cement driveway runs from the street to the garage. It serves as a pedestrian walkway as well as an automobile driveway. Each unit has a short walkway extending from the end of the driveway to the front door. The driveway is 16% feet wide and 17 feet long. At a point 8 feet in from the street there is a step off or drop in the level of the driveway of 1 inch to 1% inches. This runs in a straight line directly across the driveway for its entire width. This difference in levels had existed from the time of construction, which was six years before.

On Sunday, October 3, 1954, about 1:30 p. m., at the request of a tenant, plaintiff drove to the premises, parked her automobile on the street in front, got out and went in [197]to see the tenant. The day was bright and sunny. The driveway was clean and unobstructed. Plaintiff walked down the driveway to the front door of the tenant’s unit without incident. She did not notice the step-down or difference in levels previously described. After attending to her business with the tenant, plaintiff left by the same route. When she reached what would then be for her the step-up she stubbed the toe of her right shoe thereon and fell, sustaining injury to her left leg and left arm.

Plaintiff’s complaint charged negligent maintenance of the driveway by reason of the condition herein described. Defendant’s answer denied ownership of the premises, denied negligence on his part, alleged contributory negligence by plaintiff, and that the accident was unavoidable insofar as he was concerned.

The trial court granted plaintiff a new trial after the jury verdict against her on the sole ground that it had erred in instructing the jury on “unavoidable accident.”

Defendant first contends that there is no evidence that he owned the property and that therefore the jury was required to return a verdict in his favor, regardless of anything else that occurred in the trial. The only evidence as to ownership was the testimony of defendant, who was called by plaintiff as an adverse witness under the provisions of section 2055 of the Code of Civil Procedure. He testified that he lived in one unit and the tenant who was visited by plaintiff lived in the other; that he had been living there for the past six years; that the driveway had been in the same condition as that complained of by plaintiff since construction. The record then shows as follows: “Q. [By plaintiff’s attorney] : Mr. Schneider, is there any sidewalk other than this driveway that runs from the street to your house? A. No. Q. And does that cover both your house and the tenant’s house? A. Tes. Q. And who were the tenants that day? A. Geller. Q. Geller? A. Tes. Q. Was there any other means of access from the street to the Geller’s house without crossing lawn? A. No.” (Emphasis added.) His own attorney asked defendant the following question and received the following answer: “Q. Is there a sidewalk in front of your place? A. No, there is—that’s what I—this part that’s level was primarily put there for a sidewalk.” (Emphasis added.) This is all of the testimony as to ownership but we hold that it is sufficient to support an inference that defendant owned the premises.