Davis v. Duncan

HELD, J., pro tem. In this action to recover damages for personal injuries, the jury returned its verdict in favor of plaintiff for the sum of $10,000. From the judgment entered on that verdict, defendants appeal, and contend that the evidence establishes as a matter of law that the injuries suffered by plaintiff were caused by her own negligence, and not by the negligence of defendants.

Respondent was employed as a saleswoman in the drapery department in the store of John Breuner Company, in Sacramento. Appellant Robert Duncan, doing business as Floor [281]Service Company, entered into a contract with plaintiff’s employer to sand, seal and wax certain floors in the rug department of the Breuncr store. Appellant Roberts was an employee of appellant Duncan in performing the work called for by the contract. This work was done in three sections, that is, one portion of the floor was completed before another was entered upon, and the process involved the sanding and smoothing of the floor with a sanding machine, and the application of a composition known as Duro-Seal, to seal the wood against dirt. This composition was allowed to dry on the floor overnight, and the following morning the floor was rubbed down with a machine equipped with a steel-wool pad to remove the excess Duro-Seal from the floor. Thereupon a liquid wax finish known as I-C-E finish was poured upon the floor in streaks and spread with an applicator, a wooden block about sixteen inches long wrapped with a sheepskin cover, and having a handle about five feet long. After the wax finish had been spread, the floor was allowed to dry, and after the lapse of approximately thirty to forty-five minutes the floor was polished by the use of a machine.

The drapery department in which plaintiff was employed was to the west of, and separated from, the rug department by a partition, at the north and south ends of which were doors opening from one department to the other. Near the northeast corner of the rug department was a service desk, near which appellant Roberts, on the morning of April 7, 1939, was engaged in pouring and spreading I-O-E wax finish on the adjacent floor. Plaintiff had occasion to approach the service desk on an errand. Her course lay through the door at the south end of the partition, thence northerly along the partition and thence easterly in the direction of the service desk. As she neared the service desk she slipped and fell, and sustained the injuries complained of. Shortly prior go the accident, appellant Roberts had poured a quantity of the wax finish in the vicinity of the place where plaintiff fell, and, a few minutes before the accident, had completed the spreading of the finish over that area, and at the time was spreading the finish to the south.