Ury v. Fredkin's Markets Inc.

CASHIN, J. The plaintiff sought to recover damages for personal injuries alleged to have been caused by the negligence of the defendants. The latter answered, denying negligence on their part, and alleged that the plaintiff had herself been negligent in the matter and that her negligence contributed proximately to the injuries sustained. The cause was tried before a jury, which rendered a verdict for the defendants. The plaintiff appeals.

Two contentions are made in support of the appeal, viz., that the court erred in one of its instructions to the jury, and that there was no evidence of negligence on the part of the plaintiff upon which an instruction on the subject of contributory negligence could be based.

The instruction was in the following terms: “The court instructs you that one who voluntarily places herself in a position of danger, knowing the situation as it exists, and knowing at the time how she might avoid the danger to herself if she used ordinary care for her own protection, is assumed in law to have assumed the risk of the situation which she voluntarily goes into.”

It is contended that this instruction is erroneous because the answer of the defendants contained no specific plea: of assumption of risk.

The point is not well taken for the reason that the defense of plaintiff’s contributory negligence was pleaded, under which the evidence upon which the instruction is based was admissible. (Commonwealth Bonding & Casualty Ins. Co. v. Pacific Elec. Ry., 42 Cal. App. 573 [184 Pac. 29]; Quinn v. Recreation Park Assn., 3 Cal. (2d) 725 [46 Pac. (2d) 144]; Anderson v. Western Pac. R. R. Co., 17 Cal. App. (2d) 244 [61 Pac. (2d) 1209]; 39 Cor. Jur., Master and Servant, sec. 883, p. 684; Restatement of the Law of Torts, sec. 466.) .

[503]Defendants’ second point necessitates a reference to the testimony.

The injuries suffered hy plaintiff were the result of the bodies of plaintiff and defendant Don Cissi coming in contact with sufficient violence to cause plaintiff to fall to the ground. It happened in a provision, fruit and vegetable market conducted by defendant Fredkin’s Markets Inc., the employer of Cissi, serving in the capacity of salesman, whose movement in making a sale brought him in bodily contact with plaintiff. The market was conducted under the quite common system of dividing the floor space of a building or part thereof into blocks, occupied by displays of merchandise, with passageways or aisles between them, there being no counters behind which the salesmen stand, these taking their place immediately in front of the particular merchandise they each are engaged in selling, and in a sense mingling with the public, which has practically equal access to the merchandise with the salesmen. The plaintiff entered this market one Saturday afternoon for the purpose of buying cherries. She is a woman of frail and slight physique and' at the time of the occurrence was 74 years of age. Don Cissi was stationed at a vegetable and fruit stand on the west side of an aisle running north and south. He was engaged in waiting on a customer, and was stooping over with his back to the aisle putting tomatoes in a bag preparatory to weighing them at a scale situated to his right, to reach which it was necessary for him to walk a step or two parallel with his stand. In straightening up and turning to his right his body came in contact with that of the plaintiff, who was standing close to him, behind and a little to his right. Though so close to and behind Cissi, she was not looking in his direction but was gazing to the north along the aisle. As already stated, as a result of this contact she fell to the ground and was quite severely injured, one of her hip joints being fractured.