SLOW DEVELOPMENT COMPANY, an Arizona corporation; and Hotel Desert Hills, an Arizona corporation, Appellants,
Harold B. COULTER and Willa G. Coulter, his wife, Appellees.
[88 Ariz. 124] Struckmeyer, Whitney & Perry, Phoenix, for appellants.
Shimmel, Hill, Cavanagh & Kleindienst, Phoenix, for appellees.
This is an action brought by Willa G. Coulter and her husband, as plaintiffs, against the defendants Slow Development Company, a corporation, and Hotel Desert Hills, a corporation, to recover for personal injuries sustained by Willa G. Coulter from slipping on a wet cement walk on the hotel premises. The jury returned a verdict for the plaintiffs in the sum of $25,000 and from the judgment entered thereon the defendants appeal.
On the afternoon of February 6, 1956, the plaintiffs registered as guests at the Desert Hills Hotel, owned and operated by the defendants in Phoenix, Arizona. It was raining at the time plaintiffs registered at the hotel. In order to reach the room they were assigned to on the second floor it was necessary to walk across a grass patio and a walkway of simulated flagstone until they reached the foot of the stairs where there was a waxed green cement floor. Plaintiffs remained in their room until early evening and decided to have dinner in the Hotel. While it was raining, they walked down the stairway they had used to get to their room and when plaintiff Willa G. Coulter reached the bottom of the stairs, she slipped upon the wet cement walk and fell, sustaining serious and permanent injuries.
[88 Ariz. 125]
I. Admissibility of Evidence of previous accidents.
Defendants first assert the trial court erred in receiving evidence of similar prior accidents as testified to by witness Burke for the reason that the other accidents did not occur under similar conditions.
Burke testified that he had been employed as a bell man for the defendants prior to and at the time plaintiff fell and was injured. The witness described the floor on the bottom story of the building where the plaintiff fell as green cement which had
been 'buffed' with some type of wax and that it was slippery when wet. That he observed the plaintiff on the floor after she had fallen, and that it had rained causing the floor to become wet and slippery. The condition of the floor at that time was described as 'It got wet and slippery when it rained in on it. You would step on it, it would be slippery. It was kind of like ice. You step on it and you go if you were unaware.'
The witness further testified that on two occasions prior to the fall of the plaintiff he had slipped and fallen on the same waxed cement floor when it was wet. That his falls were not at the same location as the fall of plaintiff, but the condition of the floor was substantially the same as the place where plaintiff was injured. Burke thereafter reported to a Mr. Nelson (general manager of all of defendant's hotels and restaurants) that he had slipped and fallen on the wet cement floor on the bottom story of the premises.
The applicable general rule is well established that evidence of other similar accidents at or near the place suffered by persons other than the plaintiff, at different times, not too remote in point of time, is admissible. Buchanan v. Green, 73 Ariz. 159, 238 P.2d 1107; Westman v. Clifton's Brookdale, Inc., 89 Cal.App.2d 307, 200 P.2d 814; Gilbert v. Pessin Grocery Company, 132 Cal.App.2d 212, 282 P.2d 148; 20 Am.Jur., Evidence, Section 304; Annotation 70 A.L.R.2d 167. Such evidence is admissible, after a proper foundation has been laid, as tending to prove the existence of a defective or dangerous condition, knowledge or notice of the dangerous condition or negligence in permitting that condition to continue. However, as stated in Gilbert v. Pessin Grocery Company, supra, [132 Cal.App.2d 212, 282 P.2d 154]
'* * * it is not necessary that the proffered evidence of previous accidents be probative in all those respects. If it fairly raises an inference upon one phase of the case it is admissible. * * *'
It is also well settled that in order to permit the admission of testimony of previous accidents it must first be shown that the conditions under which the alleged previous accidents occurred were the same or [88 Ariz. 126] substantially similar to the one in question; however, it is not necessary that it be shown that such accidents occurred under circumstances precisely the same as those surrounding the accident in question, but it is sufficient that they are similar in their general character. Dragash v. Western Pacific Railroad Company, 161 Cal.App.2d 233, 326 P.2d 649; Laird v. T. W. Mather, Inc., 51 Cal.2d 210, 331 P.2d 617; Magnuson v. City of Stockton, 116 Cal.App. 532, 3 P.2d 30.
In the case at bar witness Burke testified distinctly and positively that the condition of the floor where his accidents occurred was substantially similar to the floor where plaintiff sustained her injuries and we therefore hold that a proper foundation was shown and the trial court properly admitted the testimony of such witness into evidence.
II. Cross-examination of Managing Agent.
It is contended on behalf of the defendants that the trial court erred in permitting the plaintiff to call a certain employee of the defendants as her witness under Rule 43(g), Rules of Civil Procedure, 16 A.R.S., which authorizes a party to call 'an adverse party or an officer, director, or managing agent of a public or private corporation * * * which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party * * *.' Plaintiff called Joseph Childers who testified that he was manager of the Desert Hills Hotel at the time plaintiff received her injuries. That he had charge of the hotel operations and as he stated:
'A. The employees and seeing that things run ...