[Civ. No. 1305.

Second Appellate District.

May 29, 1914.]

#### MAYBELLE OLIVER, Respondent, v. EMMA STOLTENBERG, Appellant.

Negligence—Change op Steps Due to Raising Building—Injury to Tenant Using Steps.—Where the owner of an apartment house raises the building several inches, but leaves the steps, which lead from the porch to the sidewalk, in their original position, without warning his tenants, and a tenant, in coming out of the building and proceeding to the sidewalk without noticing the changed condition, falls and is injured, the question of the owner’s negligence is one of fact, and an appellate court cannot say, as a matter of law, that the' trial e’tiurt erred in awarding the tenant damages for his injuries.

*638APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Frank G-. Finlayson, Judge.

The facts are stated in the opinion of the court.

H. A. Massey, and Peyton H. Moore, for Appellant.

D. Z. Gardner, for Respondent.

JAMES, J.

Appeal was taken in this cause from the judgment entered against defendant and also from an order denying her motion for a new trial.

The cause of action was one for damages for personal injuries alleged to have been suffered by the plaintiff as a result of the negligent acts of defendant.

Appellant was the owner of an apartment house in the city of Los Angeles and respondent was a tenant therein. Being desirous of having the house raised to a greater height above the surface of the ground, appellant employed one Young, a contractor, to do the work and he commenced the task on Saturday, the last day of September, 1911. On Sunday morning at about ten o’clock the building had been raised at the front about five inches. As it had stood theretofore there were two cement steps leading from the porch at the front to the sidewalk and the top step was about one and one-half inches below the level of the porch. When the hotise was raised to the height of about five inches there ivas then created another step from the porch surface to the top of the first cement step, and a space was left where the riser is ordinarily placed. When the steps were in that condition plaintiff came out of the building and proceeded as she ordinarily did to reach the sidewalk, without noticing that the building had been raised. Not expecting to find the first cement step lower than it had previously been, her foot slipped and she fell, sustaining injuries for which the trial court awarded her damages in the sum of one thousand five hundred dollars. As to the facts just stated there was no dispute between the parties, and it was also agreed that the contractor Young was an independent contractor in his connection with the work, but that he had no duty to perform under his agree*639ment with appellant as to the steps; these latter he was not to molest or change. The court determined hy its findings all of the facts as they have been narrated, and further found that the change in the position of the porch at the time of the accident to respondent “was not apparent to any one passing from said porch to said steps. ’ ’

Upon such a state of the record it is contended on the part of appellant that there was not sufficient evidence to show that appellant had committed any negligent act which caused respondent’s injuries, and second that it appeared that respondent was guilty of negligence which contributed to cause the accident. It is first claimed that upon the facts as presented to the trial court and shown in the statement on motion for a new trial, it became a question of law as to whether or not appellant had been guilty of negligence and that such a question is here presented for review. It is an unusual case indeed where the facts and circumstances surrounding the happening of an event involving a question of negligence present a case where it can be said without any qualification that all men, considering the matter in a rational and reasonable light, would agree as to whether ordinary care had been used by the person charged with negligence. “The question of negligence must be submitted to the jury as one of fact, not only where there is room for difference of opinion between reasonable men as to the existence of the facts from which it is proposed to infer negligence, but also where there is room for such a difference as to the inferences which might fairly be drawn from conceded facts. Where this is the case, the issue must go to the jury, no matter what may be the opinion of the court as to the value of the evidence or the credibility of the witnesses. So, if the issue narrows itself to a distinction between what is reasonably safe and what is not so, the question is emphatically one for the jury. It is for the court to say whether there is any evidence in the case from which negligence might reasonably be inferred; and then it is for the jury to say whether, from the facts thus proved, negligence ought to be inferred.” (1 Shearman and Redfield on Negligence, par. 54.) *As*illustrating the application of the rules declared in the text book referred to, the case of *Humphrey*v. *Leonard,*151 Cal. 375, [90 Pac. 705], may be cited, wherein it is said: “Appellant’s proposition is that the *640facts being undisputed, it was a question of law as to whether or not defendants were negligent, and that the finding and determination of the court is against the law and against the evidence. This, however, may not be said. It was for the court, as it would have been for the jury, considering all of the circumstances and facts shown by the evidence, to declare whether the defendants were or were not negligent. . . . The defendants were called upon to exercise the care which the circumstances required in the construction and maintenance of the temporary driveway, and what was ordinary care it was peculiarly the province of the court below, sitting as a trier of the facts, to determine.” There is then, on this branch of the case, but one query.to answer: Was there any substantial evidence from which the trial court might draw its conclusion that in leaving the steps in their changed condition, without warning to her tenants, appellant acted in a manner other than ordinary prudence would suggest she should act, having reasonable regard for the safety of the occupants of her building. There can be no doubt at all that appellant would have been negligent had shé raised the house without the knowledge of, or notice to, her tenants and one of them had gone upon the steps in the dark and been injured. The same case is presented here with the exception that the respondent was injured in the daytime. And the same conclusion must follow unless it can be said that the conditions were such as to apprise those who had occasion to go from the building that the steps had been lowered through the raising of the building; and these conditions would need to be so plain as to give notice to the tenant as effectually as would a barrier, a sign, or other familiar form of warning. There was no such plain notification shown to have been given. It was a fair inference for the court to draw from all of the testimony that persons emerging from the building, unless their, eyes were kept ahead of their feet, would not have noticed the fact that the edge of the porch had been raised above the cement step four or five inches. The court did find that the change was not apparent to any one passing from the porch to the steps. Hence this court cannot say as a matter of law that the conclusion of the trial judge was erroneous. For precisely the same reasons it must be concluded that the finding that respondent was not guilty *641of any act of negligence which contributed to cause her injuries, is not the subject of review; there was some evidence of a substantial nature upon which to found the finding.

The case of *Smith*v. *Buttner,*90 Cal. 95, [27 Pac. 29], is cited in support of appellant’s contention that the complaint in this action did not state facts sufficient to constitute a cause of action. In this case the particular defect which caused the injuries to plaintiff is described and it is then alleged that respondent while passing out of the house fell upon the steps, by reason of the negligence of the appellant “as aforesaid.” It séems that the complaint made a sufficiently clear statement of the facts illustrating the conditions out of which appellant’s negligence arose and sufficiently showed that it was due to these conditions that respondent fell upon the steps.

The judgment and order are affirmed.

Conrey, P. J., and Shaw, J., concurred.