ELLA S. LAIRD, Respondent, v. T. W. MATHER, INC. (a Corporation), Appellant, 51 Cal. 2d 210

TRAYNOR, J. While descending the stairway to the basement of defendant’s store, plaintiff, a 79-year-old woman whose health and eyesight were good, fell on the bottom step and suffered a broken hip. A photograph of the stairway taken from the basement (defendant’s Exhibit B, reproduced on next page) shows the stairway as it was on the day of the accident except that in addition to the handrails there was a rail on each side of the stairwell on the wings where the brackets appear. The handrail terminated approximately a step and a half short of the full length of the stairway.

In this action for damages plaintiff testified that she used the handrail for support, that when she reached the end of the handrail she assumed that she had reached the bottom of the stairs, and that she then stepped forward and fell. At the trial, which was held four years after the accident, she testified at one time that she could not remember where she was looking when she fell and at another time that she was looking out into the lighted basement. Wares were on display in the basement in front of the stairs.

Plaintiff testified that she did not recall looking at any particular display, but defendant’s traffic manager testified that after the accident plaintiff stated to liim that she had been looking at the merchandise in front of the stairway. There was testimony that at least 50 per cent of the customers visiting defendant’s department store were over 65-70 years of age, that defendant had notice of the condition of the stairway, and that extensions for the handrail had been ordered but had not been installed by the time of the accident.

Two witnesses testified for defendant that the stairway did not violate the Pasadena Building Code and that it was constructed according to “standard engineering practice.” The jury returned a verdict in favor of plaintiff for $9,540.18. Motions for a directed verdict, judgment notwithstanding the verdict, and for a new trial were denied.

Defendant appeals from the judgment entered on the verdict and from the order denying its motion for judgment notwithstanding the verdict, claiming that the evidence was insufficient to establish liability and that certain rulings on admission of evidence and instructions to the jury were prejudicially erroneous. I. Sufficiency of the Evidence to Support the Verdict It is conceded that the plaintiff was a business invitee at the time of the accident.

Defendant was therefore obliged to exercise ordinary care to keep its premises in a reasonably safe condition or to give warning of latent or concealed dangers of which it knew or should have known in the exercise of reasonable care. (Blumherg v. M. & T. Inc., 34 Cal.2d 226, 229 [209 P.2d 1] ; Blodgett v. B. H.

Dyas, 4 Cal.2d 511, 512 [50 P.2d 801] ; see 2 Rest., Torts, § 343.) Defendant contends that its motion for judgment notwithstanding the verdict should have been granted on the grounds that the evidence discloses as a matter of law that it exercised the required degree of care in the maintenance of its premises and that the plaintiff failed to exercise ordinary care for her own safety. What constitutes “ordinary care” under the facts of any particular case is usually a question for the jury, which must view the conduct as a whole in the light of all the circumstances.

Thus, it is common practice for the jury to determine the standard of conduct to be applied within the compass of the broad rule that the prescribed conduct must conform to that of a “reasonably prudent man under the circumstances.” (See Peri v. Los Angeles Junction Ry. Co., 22 Cal.2d 111, 120-121 [137 P.2d 441]; Clinkscales v.

Carver, 22 Cal.2d 72, 75-76 [136 P.2d 777].) In the absence of legislatively or judicially declared standards, the question whether or not the conduct of a party conformed to that of a “reasonably prudent man” is left to the jury’s determination when different conclusions may reasonably be drawn from the evidence. (Neel v. Mannings, Inc., 19 Cal.2d 647, 656 [122 P.2d 576]; Brandenburg v. Pacific Gas & Elec. Co., 28 Cal.2d 282, 285-286 [169 P.2d 909] ; McStay v. Citizens Nat. T. & S.

Bank, 5 Cal.App.2d 595, 600 [43 P.2d 560].) Applying this rule we have concluded that the question whether or not defendant failed to keep its premises in a reasonably safe condition was properly left to the jury. Defendant’s customers included a large number of elderly persons.

The jury could reasonably conclude that by ending the handrail short of the bottom step of the stairway, defendant created an unreasonable risk of danger, on the grounds that it could reasonably have been foreseen that the customers would assume that the handrail would continue the full length of the stairway, that their attention would be distracted by the display of wares offered for sale in the basement, that they would be preoccupied with the possibility of making purchases, and that they would rely on the handrail to help them safely to the basement.

Defendant cites several decisions for the proposition that it is not liable as a matter of law. In Holmes v. Moesser, 120 Cal.App.2d 612 [262 P.2d 27], the plaintiff fell on stairs that did not have a handrail even though a statute required that one be provided. In affirming a judgment of nonsuit, the court held that the absence of a handrail is not actionable negligence when there is no showing that this absence caused or contributed to the plaintiff’s fall. In the present case there is evidence that plaintiff’s fall was caused by the fact that the railing did not run the full length of the stairway. Marple v.

Manspeaker, 88 Cal.App. 682 [263 P. 1022] ; Harpke v. Lankershim, Estates, 103 Cal.App.2d 143 [229 P.2d 103] ; and Darrach v. Trustees of 8. E. County Medical Assn., 121 Cal.App.2d 362 [263 P.2d 469], are likewise not controlling, for they hold only that no inference of negligence arises from the mere proof of a fall on a stairway. In all these cases the plaintiff’s fall was left unexplained; there was no evidence that the particular stairs were unsafe or dangerous, that the defendant knew or should have known of a dangerous condition, or that the plaintiff fell because of any unsafe condition.

Defendant contends that the condition of the stairway was obvious and that it has no duty to warn of dangers that the ordinary person would perceive in the exercise of reasonable care for his own safety. Por this proposition it relies heavily on Blodgett v. B. H. Dyas, 4 Cal.2d 511 [50 P.2d 801], In that case, while walking along a public street with her attention fixed on a window display, plaintiff fell into a recess from which a stairway led to the basement of defendant’s store.

Affirming a judgment of nonsuit, the court held that the plaintiff was contributively negligent as a matter of law: ‘ ‘ The evidence shows without conflict that the plaintiff heedlessly walked into an open stairway in broad daylight. She was a pedestrian on a busy street, paying no attention whatever to where she was walking. ... A person walking through the busy streets of a large city is charged with the knowledge that there are many open stairways leading to basements of mercantile establishments.

There is no duty to give any warning in broad daylight of the presence of a stairway and persons must use their eyes to protect themselves from such obvious dangers. (Citations.)” (4 Cal.2d at pp. 512-513.) Defendant contends that in the present case plaintiff could likewise have protected herself “merely by using her eyes.” But it does not follow from the fact that plaintiff might have seen the last step had she looked that she was contributively negligent as a matter of law.

All of the circumstances must be taken into account, and where there is some reasonable excuse for a failure to observe an obvious danger the conduct may be excused.

Although a person may be charged, as a matter of law, with the knowledge that there are pitfalls to be avoided on a public street, it is not necessarily negligent to fail to watch for dangers in a business establishment when the ordinarily prudent person would not in fact expect to find the condition where it is, or where he is likely to have his attention distracted as he approaches it. (See Harper & James, The Law of Torts 1491-1493; Prosser, Torts, 2d ed., 459-460.) There are many eases involving accidents in mercantile establishments where the question of plaintiff’s contributory negligence has been held to be a question for the jury even though the plaintiff failed to observe what may have been an obvious danger.

Por example, in Walsh v. Maurice Mercantile Co., 20 Cal.App.2d 45 [66 P.2d 181], the plaintiff tripped and fell over a scale that protruded into the aisle of defendant’s store. The court stated: “Conceding that if the plaintiff had looked she might have seen the scale, nevertheless in the circumstances she was reasonably justified in assuming that the aisle was unobstructed, and her failure to see it was not necessarily negligence. Different inferences might be drawn from the evidence . . . the question was one for the jury.” (See also Blumberg v. M. & T.

Inc., 34 Cal.2d 226 [209 P.2d 1] [clearly visible opening in rug mat] ; Neel v. Mannings, Inc., 19 Cal.2d 647 [122 P.2d 576] [projection extending over the end of a stairway]; Rau v. Redwood City Woman’s Club, 111 Cal.App.2d 546 [245 P.2d 12] [worn and slippery stairs] ; Locke v. Red River Lbr. Co., 65 Cal.App.2d 322 [150 P.2d 506] [plainly visible crack in concrete floor].) In the present case we cannot say that as a matter of law plaintiff did not use the degree of care that should have been exercised by a reasonably prudent person under similar eircumstanecs.

The jury could reasonably conclude that plaintiff could safely assume that the handrail would not terminate before the bottom of the stairway was reached. “Contributory negligence is not imputable to a plaintiff for failing to look out for a danger which he had no reasonable cause to apprehend, or to a plaintiff who was deceived by appearances calculated to deceive an ordinarily prudent person.” (Brandenburg v. Pacific Gas & Elec. Co., 28 Cal.2d 282, 287 [169 P.2d 909].) There was therefore no error in denying the motion for judgment notwithstanding the verdict. II.

Scope of Cross-Examination of Defendant’s Expert Witness Thomas C. Shields, a construction engineer presented by defendant as an expert witness, testified on direct examination that in his opinion the stairway conformed to “standard engineering practice” in the city of Pasadena.

On cross-examination plaintiff’s counsel asked whether he limited his answers to standard engineering practice in Pasadena, to which the witness replied “No,” volunteering that: “That would also be [true] anywhere in the world, so far as I am concerned.” The witness was then asked, over objection, whether the stairway would conform to proper practice in “all of Los Angeles,” to which he replied, “Yes.” On further cross-examination counsel interrogated him on his familiarity with the Los Angeles Building Code and the witness read from the code certain provisions dealing with the requirement of handrails.

Defendant contends that facts concerning the building code were irrelevant to the present inquiry, that they were not brought out on direct examination, and that it was therefore improper to permit this course of cross-examination. Plaintiff contends that when the witness voluntarily stated that in his expert opinion the stairway conformed to standard engineering practice “everywhere in the world” including Los Angeles, plaintiff could test his credibility by showing that this statement could not possibly be true.

Although the cross-examination of a witness should ordinarily be confined to matters that have been testified to by the witness on direct examination, latitude is permitted to test accuracy or credibility (Newman v. Los Angeles Transit Unes, 120 Cal.App.2d 685, 691 [262 P.2d 95]; Wigmore, Evidence, § 1006; McCormick, Evidence, § 22), and the trial court is given a wide discretion in controlling cross-examination affecting the knowledge and credibility of an expert witness. (Laguna Salada, etc. School List. v.

Pacific Development Co., 119 Cal.App.2d 470 [259 P.2d 498].) In the present case defendant’s witness offered his expert opinion as to the safe construction of the stairway “anywhere in the world.” The trial court did not err in permitting the plaintiff to inquire into the basis for this opinion nor to counter the effect of the witness’s broad statement by attempting to show that it was not correct. (Cf. People v. Westek, 31 Cal.2d 469,476 [190 P.2d 9].) III.

Admissibility of Evidence of Previous Injuries Over objection by defendant, George Falk, a former employee of defendant, was permitted to testify that before the accident he had told Mr. Kalik, defendant’s vice-president, that: “we should do something about that rail because I had heard from one of the employees—I don’t remember who it was—that someone had almost fallen, and he said, ‘All right. Go ahead, and get the extensions put on it.’ ” The trial court instructed the jury that the conversation was received for the limited purpose of showing that defendant had notice of the condition of the stairway.

Defendant claims that the court erred, on the ground that there was no preliminary showing that the alleged previous incident occurred under substantially similar circumstances as the injury in the present ease. Before evidence of previous injuries may be admitted on the issue of whether or not the condition as it existed was in fact a dangerous one, it must first be shown that the conditions under which the alleged previous accidents occurred were the same or substantially similar to the one in question. (Martindale v. Atchison, T. & S.F. Ry.

Co., 89 Cal.App.2d 400, 411 [201 P.2d 48]; see Wigmore, Evidence §458; McCormick, Evidence 351-352. The strictness of this requirement of similarity of conditions is “much relaxed,” however, when the purpose of the offered evidence is to show notice, “since all that is required here is that the previous injury should be such as to attract the defendant’s attention to the dangerous situation which resulted in the litigated accident.” (McCormick, Evidence 352; see also McCormick v. Great Western Power Co., 214 Cal. 658, 665-666 [8 P.2d 145, 81 A.L.Bi. 678] ; Gilbert v. Pessin Grocery Co., 132 Cal.

App.2d 212, 217-221 [282 P.2d 148].) In the present ease it was ■ incumbent upon plaintiff to prove not only that the stairway was dangerous but that the defendant knew or should have known that it was. Mr. Falk’s testimony was offered solely to show such notice. The import of that testimony was that Mr. Kalik had been informed that someone had slipped on the stairs and that extensions should be installed on the handrail. If believed, the testimony would support a finding that defendant was aware that the handrail presented a hazard to the users of the stairway.

It was therefore relevant and admissible, not to show that someone actually fell, but to show defendant’s knowledge of the dangerous condition of the stairway. Insofar as Thompson v. Buffum’s, Inc., 17 Cal.App.2d 401 [62 P.2d 171], is inconsistent with the principle that it is proper to admit evidence of previous injuries that reasonably tends to show that the defendant knew or should have known of the alleged dangerous condition that caused the injury in question, it is disapproved. ; IV.

Instruction on Presumption of Due Care Defendant contends that since plaintiff testified fully as to her acts and conduct in descending the stairs, the trial court committed prejudicial error by instructing the jury on the presumption of due care. Under the rule accepted by the majority of this court, the disputable presumptions (contained in Code Civ. Proc., § 1963) are evidence and as such can be weighed. (Speck v. Sarver, 20 Cal.2d 585, 590-598 [128 P.2d 16] ; cf. 24 U. of Chi. L.

Rev. 211, 219.) Although an instruction on the presumption of due care may properly be given under certain circumstances (see e.g., Westberg v. Willde, 14 Cal.2d 360 [94 P.2d 590] ; Scott v. Burke, 39 Cal.2d 388 [247 P.2d 313] ; Gigliotti v. Nunes, 45 Cal.2d 85 [286 P.2d 809]), it is now settled that an instruction on the presumption should not be given when the party who seeks to invoke it testifies concerning his conduct immediately prior to or at the time in question. (Rogers v. Interstate Transit Co., 212 Cal. 36 [297 P. 884]; Paulsen v. McDuffie, 4 Cal.2d 111 [47 P.2d 709] ; Mundy v.

Marshall, 8 Cal. 2d 294 [65 P.2d 65] ; Speck v. Sarver, 20 Cal.2d 585 [128 P.2d 16]; Barker v. City of Los Angeles, 57 Cal.App.2d 742 [135 P.2d 578] ; Ringo v. Johnson, 99 Cal.App.2d 124 [221 P.2d 267] ; Jones v. Scurlock, 96 Cal.App.2d 201 [214 P.2d 599]; Ford v. Chesley Transportation Co., 101 Cal.App.2d 548 [225 P.2d 997]; Rozzen v. Blumenfeld, 117 Cal.App.2d 285 [255 P.2d 850]; Verhaegen v. Guy F. Atkinson Co., 126 Cal.App. 2d 442 [272 P.2d 855] ; Stout v. Southern Pacific R.R. Co., 127 Cal.App.2d 491 [274 P.2d 194] ; Nunnemaker v. Headlee, 140 Cal.App.2d 666 [295 P.2d 438] ; Swanson v.

Bogatin, 149 Cal.App.2d 755 [308 P.2d 918]; Hughes v. City & County of San Francisco, 158 Cal.App.2d 419 [322 P.2d 623].) In the present case plaintiff testified to her conduct immediately prior to or at the time of her fall. “In the face of this evidence there was no room for any presumption. ’ ’ (Rogers v. Interstate Transit Co., 212 Cal. 36, 38 [297 P. 884].) It was therefore error to give the instruction. The question remains whether the error was prejudicial. In Butigan v.

Yellow Cab Co., 49 Cal.2d 652, 660-661 [320 P.2d 500], it is stated that: “The determination whether, in a specific instance, the probable effect of the instruction has been to mislead the jury, and whether the error has been prejudicial so as to require reversal depends on all the circumstances of the case, including the evidence, and the other instructions given. No precise formula can be drawn.” In that ease, the giving of an instruction on unavoidable accident was held to constitute reversible error because it tended to overemphasize defendant’s case.

From the evidence presented in the present case the jury could reasonably have drawn the inference either way on the vital issue of plaintiff’s contributory negligence. The giving of the instruction obviously added strength to the plaintiff’s contention that she was acting with due care for her own safety, and thus overemphasized her claim in the minds of the jury. The defendant was thereby forced to overcome by a preponderance of the evidence, not only plaintiff’s case that she was free from contributory negligence, but also the presumption that she was acting with due care.

Instructions like the one here involved necessitated reversal in the similar cases of Rozzen v. Blumenfeld, 117 Cal.App.2d 285 [255 P.2d 850]; Verhaegen v. Guy F. Atkinson Co., 126 Cal.App.2d 442 [272 P.2d 855]; and Stout v. Southern Pacific R. R. Co., 127 Cal.App.2d 491 [274 P.2d 194], on the ground that the erroneous instruction may have tipped the scale in plaintiff’s favor in the deliberations of the jury. It was therefore prejudicial error to give the instruction. The judgment is reversed. Gibson, C. J., Schauer, J., Spence, J., and McComb, J., concurred.

The trial court instructed the jury that: “You may consider the fact that the attention of persons who visit public stores ordinarily is attracted by the display of wares offered for sale and may be more or less absorbed by the transaction which they have in mind.

You may consider whether the defendant anticipated that fact with ordinary care in the exercise of the duty which I have defined; also whether the plaintiff did or did not share that ordinary experience of store visitors, and if so, what effect that fact had upon her conduct in relation to the cause of the accident.” Defendant contends that it was prejudicial error to so instruct the jury, on the ground that the instruction is unsupported by the evidence. The contention is without merit.

Although plaintiff did testify that she could not recall that her attention had been distracted by any particular display, there was evidence that merchandise was on display directly in front of the stairway; plaintiff testified at one time that she was looking out into the lighted basement; and the defendant’s traffic manager testified that plaintiff told him that just before she fell she was “looking at the merchandise out in the open in front of the stairwell.” The fact that there was merchandise on display in the proximity of the stairwell is relevant to the issue of the foreseeability of accidents from the use of the handrail.

In that case the court upheld a ruling sustaining the objection to counsel’s questions as to whether or not other women had previously fallen on the stairway in question. The court held that the questions were properly excluded, on the ground that the inquiry was not limited to the particular step of the stairway where the accident occurred. The court did not discuss the possibility that, if proved, the fact that other women had fallen on the stairway might be relevant to the question whether the defendant was put on notice that something was wrong and should have inspected the stairway to discover any defect.

This evidence could be relevant whether or not the previous falls had occurred on the same step. (See Wigmore, Evidence $ 252(4).)