DocketNumber: Docket No. 4674.
Citation Numbers: 259 P. 1103, 85 Cal. App. 750
Judges: PEAIRS, J., <italic>pro tem.</italic>
Filed Date: 10/3/1927
Status: Precedential
Modified Date: 1/12/2023
This is an appeal from an order of the court granting a new trial after verdict of the jury for damages for personal injuries.
The facts alleged by plaintiffs were that Julia H. O'Brien, one of the plaintiffs, went to the drug-store of defendant and after making a purchase attempted to enter the ladies' toilet, but finding it occupied was directed by the porter to the "Gents' Toilet," situated at the head of a cellar stairway, and that not being warned of danger she fell down a short flight of steps and was injured. The defendant alleges that when the plaintiff found the ladies' toilet occupied she then attempted to enter another door upon which was printed in large letters the words, "Positively No Admittance. Private," and wilfully disregarding the said sign and warnings of defendant's employees, was injured because of her own carelessness and negligence.
The testimony of plaintiff Julia H. O'Brien in itself is contradictory as to what was said and done.
To some extent her testimony corroborates the testimony of the witnesses Stromwall, Stout, and Harrison, showing that the door to the cellarway and "gents' toilet" was locked and not open to the public and that it was not opened until after she had tried to enter the ladies' toilet. The testimony of the witnesses Stromwall, Stout, and Harrison is, otherwise, quite flatly contradictory of much of plaintiff's testimony, and apparently consistent — showing the locked door, signs, warnings, conversations had and what happened. The plaintiff says that she "had no conversation with the clerk Stromwall before the accident other than to ask for medicine . . . that the door was locked at that time after buying the medicine. It is always closed. . . . I didn't notice a door there ever. . . . I saw the door after he opened it." Both Stromwall and Harrison testify that they said to plaintiff, "Don't go in there," and Stout testified to hearing each of these witnesses so state.
[1] This much of the evidence is sufficient to show great contradiction, and after considering all of the evidence in this case, some of which was decidedly conflicting, if the *Page 752
judge believed the testimony of any one of the witnesses Stromwall, Stout, or Harrison, it was not only his right but his duty to grant a new trial. The law in this respect is repeatedly stated in the following cases: In Motz v. Motz,
Therefore, in this case, there being a decided conflict in the evidence and no apparent abuse of discretion, the order granting a new trial is affirmed.
Works, P.J., and Thompson, J., concurred. *Page 753