Sylvia v. Mellema

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[Civ. No. 11179. Second Appellate District, Division Two. November 30, 1936.]

ANNA SYLVIA, Appellant, v. HELENA MELLEMA et al., Respondents.

COUNSEL

Milton D. Klein for Appellant.

Joe Crider, Jr., for Respondents.

OPINION

Wood, J.

Plaintiff appeals from a judgment in favor of defendants entered upon the return of the verdict of a jury. Plaintiff was a tenant in the apartment house conducted by defendants Mellema. She alleged in her complaint that the janitor of the apartment, defendant Amonoy, negligently left a puddle of soapy water on the kitchen floor causing her to slip and be thrown to the floor. She asked for damages suffered in the fall. Defendants deny negligence on their part and allege contributory negligence on the part of plaintiff. Upon the presentation of these issues to the jury a verdict was returned against plaintiff.

[1] Plaintiff complains of the giving of the following instruction: "There was no absolute duty on the part of defendants to have the floor in a reasonably safe condition to walk upon. In this regard I instruct you that defendants' duty was fulfilled when defendants used ordinary care, if you [17 Cal. App. 2d 729] find that they did use ordinary care." We find no error in this instruction. The proprietors of the apartment house were not insurers of plaintiff's safety. It was their duty to use ordinary care to keep the premises in a safe condition. In Mautino v. Sutter Hosp. Assn., 211 Cal. 556 [296 P. 76], the court set forth the rules governing situations like those of the present case. The language used by the court is almost identical with the language of the instruction which is attacked by plaintiff.

The judgment is affirmed.

Crail, P. J., concurred.