Wahlen v. Castleman

BARNARD, P. J. This is an appeal from a judgment after the granting of motions for a nonsuit.

[297]The action was brought on September 17, 1951, against H. A. Castleman, B. B. Hanson, and certain fictitious defendants. The complaint alleged that Castleman was the owner of a building on the west side of Crest Road in Crest-line, and Hanson was the tenant of another building on the ivest side of that road; that on August 12, 1951, the defendants negligently suffered and permitted rocks and gravel to accumulate, to be spread upon, and to remain upon the portion of Crest Road in front of these buildings, so that the same were dangerous to pedestrians passing over that portion of the said roadway; that Crest Road is a public street and the portion thereof nearest to these buildings was habitually used by pedestrians; that on August 12, 1951, while passing along said roadAvay in front of said buildings the plaintiff stepped upon some of said rocks and gravel which caused her to fall, whereby she sustained certain injuries; that plaintiff is in doubt as to whether she is entitled to redress from Castleman or from Hanson, or from the fictitious defendants ; and that all of said defendants have been joined so that it may be determined whether all or any of them are liable and to what extent. Four months later, the complaint was amended by inserting the names of Cliff Herington and C. D. Chalker as defendants sued by fictitious names.

The defendant Castleman appeared by answer, and the case was later settled as to him. On September 28, 1953, the action came on for trial as against the" defendants Hanson, Herington and Chalker, who will be referred to as the respondents. After a jury was impaneled counsel for plaintiff made an opening statement, stating that he would go into “all of the testimony of the witnesses as they would appear on the stand.” He then said that the evidence would show that the plaintiff lived at Crestline; that on the afternoon in question she was walking along Crest Road; that the only place for pedestrians to walk was between the parked automobiles and the buildings; that at the point in question there was no sidewalk; that a month or so before the accident Mr. Chalker had been engaged by Mr. Castleman to do some work on a fireplace in his building; that Chalker brought two yards of gravel “upon the job” for this purpose; that the jury was going to have to decide how that gravel got out into the street; that for at least a week or more before the accident the gravel had been between the parked cars and the building where the public had to walk; that as the plaintiff came along she stepped upon “one of these pieces of gravel or