“the knowledge acquired by the [jury view] was independent evidence in the case”
How later courts described this case
- “the knowledge acquired by the [jury view] was independent evidence in the case”
Written by the judges who cited it.
The opinion
TRAYNOR, J.,
dissenting. — I dissent.
To recover damages for negligence the plaintiff must establish that her injuries were caused by the breach of a duty owed to her by defendant. The occupant of premises open to business visitors is not an insurer of a visitor’s safety and need not eliminate every condition that might conceivably cause injury. He is liable only for injuries caused by conditions, of which he knows or should know, that constitute an unreasonable risk to visitors, when he fails to give them adequate warning. (Rest. Torts, see. 343; Prosser, Torts, sec. 79, p. 642; 19 Cal. Jur. 618, 622; 8 Cal. Jur. Supp. 349, 350, 353, 354, 1011-1012.)
In the present case there is not sufficient evidence to support a finding that the condition of the stairs subjected visitors to an unreasonable risk. According to the testimony of the architect, the stairs were scientifically constructed in the generally approved manner. While he recommended that *658 a hand rail projecting from the side of the well he carried the full length of the stairway, he made it clear that this was desirable merely to form a continuous line and not to prevent people from bumping their heads in walking up the stairs. His statement affords no basis for concluding that the stairway subjected visitors to unreasonable risk. The fact that the jury viewed the premises is not sufficient to support a finding of negligence, particularly since the parties stipulated that what was viewed by the jury is presented in the exhibits. These exhibits picture a normal, unobstructed stairway, and contain no evidence of unreasonable risk to visitors.
If there is a defective condition in the premises the occupant may discharge his duty to business visitors by giving them adequate warning. (Rest. Torts, sec. 343; see cases cited in Calif. Annotations to Rest. Torts, sec. 343; Prosser, Torts, sec. 19, p. 642; 19 Cal. Jur. 618, 619; 8 Cal. Jur. Supp. 349, 353, 354, 1011-1017.) If the-danger is so apparent that the visitor can reasonably be expected to notice it and protect himself, the condition itself constitutes adequate warning, and the possessor is under no obligation to take further action. (Shanley v. American Olive Co., 185 Cal. 552 [ 197 Pac. 793 ]; Mautino v. Sutter Hospital Co., 211 Cal. 556 [ 296 Pac. 76 ]; Blodgett v. B. H. Dyas Co., 4 Cal. (2d) 511 [ 50 Pac. (2d) 801 ]; Dingman v. A. F. Mattock Co., 15 Cal. (2d) 622 [ 104 Pac. (2d) 26 ]; see cases cited in 8 Cal. Jur. Supp. 351, note 4, p. 1012, note 4; Prosser, Torts, see. 79, p. 642.) “There is no liability for injuries from the dangers that are obvious, or as well known to the person injured as to the owner or occupant.” (Mautino v. Sutter Hospital Assn., supra, at p. 561.) As stated in Shanley v. American Olive Co., supra, at p. 555: ‘ ‘ The responsibility of such owner for the safety of such person is.not absolute; he is only required to use ordinary care for the safety of the persons he invites to come upon the premises. If there is a danger attending upon such entry, or upon the work which the person invited is to do thereon, and such danger arises from causes or conditions not readily apparent to the eye, it is the duty of the owner to give such person reasonable notice or warning of such danger. But such owner is entitled to assume that such invitee will perceive that which would be obvious to him upon the ordinary use of his own senses. He is not required to give to the invitee notice or warning of an obvious danger.”
*659 In the present case the evidence presented to the jury establishes without question that the condition of the stairway was apparent to any person using it and was as well known to the plaintiff as to the defendant. There is no evidence indicating that plaintiff did not have adequate notice of the condition of the stairway, and there is therefore no basis for concluding that defendant violated any duty owed to plaintiff. The judgment of the trial court should be affirmed.
Gibson, G. J., and Edmonds, J., concurred.
Respondent’s petition for a rehearing was denied March 30, 1942. Gibson, C. J., Edmonds, J., and Traynor, J., voted for a rehearing.