Tschumy v. Brook's Market

WILSON, J. This is the second appeal in this action. The first appeal was by plaintiff from the judgment entered on a verdict in favor of defendants. That judgment was reversed on account of errors- in instructions given to the jury. (Tschumy v. Brook’s Market, 60 Cal.App.2d 158 [140 P.2d 431].)

The present appeal is from a judgment on a verdict which the court directed the jury to render in favor of defendants.

A directed verdict may be ordered only when conflicting evidence is disregarded and plaintiff’s evidence is given the value to which it is legally entitled, indulging all legitimate inferences that may be drawn therefrom,' and the result is that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff. A motion for a directed verdict concedes as true all evidence given on behalf of plaintiff with all fair and reasonable inferences to be deduced therefrom, and even though the court might be justified in granting a new trial in the event of a verdict in favor of plaintiff it would not be justified in directing a verdict on the same evidence. (Estate of Lances, 216 Cal. 397, 400 [14 P.2d 768]; Estate of Flood, 217 Cal. 763, 768 [21 P.2d 579] ; Thomsen v. Burgeson, 26 Cal.App.2d 235, 240 [79 P.2d 136] ; Engstrom v. Auburn Auto. Sales Corp., 11 Cal. 2d 64, 66 [77 P.2d 1059] ; Gish v. Los Angeles Ry. Corp., 13 Cal.2d 570, 572 [90 P.2d 792].)

The facts relating to the parking lot on which the accident took place, the adjacent market and sidewalk, the -lighting conditions, and the projection from the sign which caused plaintiff to fall, are fully described in the opinion rendered on the former appeal and need not be repeated here. For a better understanding of the character of the sign and its projecting supports a reproduction of a photograph introduced in evidence is appended. [See photo opposite page.]

It should be noted in connection with the photograph that according to the evidence, as plaintiff passed in front of the sign (it was on her right), she stepped onto the sidewalk with her left foot and as she raised her right foot it caught in the iron ring at the end of one of the projections from the bottom of the sign, causing her to fall. The ring is approximately two feet from the sign and indicates the distance of her body from the sign before she fell.

In addition to the evidence related in the opinion on the former appeal the gasoline station attendant testified at the [559]