Opinion
Aug. 10, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 91
John H. Williamson, Denver, for plaintiff in error.
Yegge, Hall & Evans, John R. Trigg, Denver, for defendant in error.
PIERCE, Judge.
This case was transferred from the Colorado Supreme Court pursuant to statute.
Appellant was the plaintiff below and is here alleging error by the trial court in excluding certain testimony and dismissing his complaint at the close of his evidence.
Plaintiff suffered injuries as a result of a slip and fall on a sidewalk in the vicinity of defendant's premises. Along this sidewalk immediately north of defendant's property line was an abandoned store followed by an excavated lot. In front of this excavation was a board fence supported on the back by wooden braces. This barrier paralleled the storefronts and was set out onto the sidewalk approximately three feet from the line of storefronts.
Testimony shows that the plaintiff is blind. On the day of the accident he was proceeding north, with the aid of a cane, along the sidewalk on the side of defendant's store. A truck had backed up to defendant's receiving door, thereby blocking the sidewalk, and plaintiff came in contact with this truck. An employee of defendant observed plaintiff's predicament and guided him around the front of the truck and back onto the sidewalk on the north side of the truck. Plaintiff then proceded north along the sidewalk until he slipped and fell at a point approximately on the property line between the abandoned store and the excavated lot. Photographs of the scene indicate that the fall occurred between 25 and 40 feet north of defendant's property line. An employee of defendant went to plaintiff's aid and helped him to his feet. Plaintiff then proceeded down the sidewalk under his own power.
One witness maintained that he saw the plaintiff immediately after his fall and that he was straddling a supporting brace affixed to the rear of the board fence. Plaintiff maintains that he slipped just prior to reaching the fence and that he was caused to fall by catching his toe on either a single flat piece of cardboard or a flattened box because he felt such an object under him after he fell and heard someone from the direction of defendant's store mention that a cardboard box should be taken away.
Plaintiff testified that later in the day he experienced pain and called the defendant store and talked with a person identified as the manager who told him that he was aware of the accident, that the store had insurance, and that plaintiff should see a doctor. An objection to the testimony as to this conversation was sustained by the trial court.
Eyewitness testimony presented on behalf of plaintiff indicated that the piece of cardboard, which allegedly caused the fall, could not be identified as the property of defendant.
According to testimony, the only cardboard handled by the defendant store was in the form of mattress boxes which were always loaded and unloaded through the receiving door where the truck was parked. The mattresses were always uncrated inside the store and the boxes thereafter stored inside the store until enough had accumulated to make a truckload for hauling to a dump. There was no testimony that any cardboard was being loaded or unloaded onto or off from the truck parked in front of defendant's store at the time of the accident. I.
Plaintiff first maintains that there was sufficient evidence presented to create an inference that he slipped on a piece of cardboard which came from defendant's premises and that the proximate cause of his injuries was a negligent scattering of debris by defendant upon the sidewalk in the vicinity of the store.
It is well established law that, in the absence of statute, there is no duty resting on the owner or occupant of land abutting a public sidewalk to keep the sidewalk in safe condition. Winston v. Hansell, 160 Cal.App.2d 570, 325 P.2d 569; Clair v. Kansas City, 180 Kan. 409, 304 P.2d 468; See Grant Co. v. Casady, 117 Colo. 405, 188 P.2d 881 and Ellsworth v. Colorado Beverage Co., Inc., 150 Colo. 19, 370 P.2d 159. If he has no duty to maintain as to the sidewalks abutting his property, he certainly has none regarding the sidewalks of other property owners on his block. He can, however, be found responsible for injuries occurring in the vicinity of his property if the hazardous condition of the sidewalk is attributable to his active negligence. Sill v. Lewis, 140 Colo. 436, 344 P.2d 972.
To find such negligence in the instant case, a jury would have to conjecture that the unidentified piece of cardboard, located at least 25 feet from defendant's premises, found its way, through some act or omission on the part of defendant, from its storage space inside defendant's building to the place where plaintiff fell. Such a conclusion would call for rank speculation. Even assuming that the plaintiff was tripped by the cardboard rather than the wooden brace, there are any number of possibilities as to the origin of the cardboard.
The burden of proof of negligence rests on the plaintiff and where the evidence presents no more than an equal choice of probabilities, it is not sufficient to meet the burden. Yeager v. Lathrop, 28 Colo.App. 44, 470 P.2d 609; Widefield Homes, Inc. v. Griego, 160 Colo. 225, 416 P.2d 365; Safeway Stores, Inc. v. Rees, 152 Colo. 318, 381 P.2d 999. The trial court was correct in its conclusion that the evidence presented was insufficient to submit to a jury.
II.
Plaintiff made no allegations in his complaint regarding any negligence on the part of defendant's employee who guided him around the truck or any imputability of such alleged negligence to defendant. In his arguments against dismissal of the complaint, and since, he has maintained that the employee in question became a volunteer when he guided plaintiff around the truck and could have been found negligent by a jury for failing to warn plaintiff of the dangers that lay ahead in his probable path.
Even if this allegation of negligence had been made an issue by the pleadings, under the facts in this case we are unable to see any duty resting upon defendant's employee to see the flat piece of cardboard lying on the sidewalk some 25 to 40 feet from where he released plaintiff. It would be unreasonable to assume that a prudent person would anticipate the likelihood that plaintiff would fall over it. Failure to guard against the bare possibility of accident is not actionable negligence. Brady v. Southern R.R. Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239; Stark v. Holtzclaw, 90 Fla. 207, 105 So. 330, 41 A.L.R. 1323; Payne v. New York, 277 N.Y. 393, 14 N.E.2d 449, 115 A.L.R. 1495. The danger must be reasonably foreseeable.
Where, as here, there was no obvious hazard readily observable, the criteria set forth in the Restatement of the Law of Torts, First, s 324 is applicable. It declares that where a person, being under no duty to do so, takes charge of another person who cannot adequately protect himself, the person rendering the aid is subject to liability only for bodily injury caused by him through his failure to exercise reasonable care to secure the safety of the other person while within the benefactor's charge. His liability ceases upon his discontinuing aid or protection, if at the time of the release he leaves the other person in no worse position than when he took charge of him. Owl Drug Co. v. Crandall, 52 Ariz. 322, 80 P.2d 952, 120 A.L.R. 1521. In sufficiency of the evidence to indicate negligence was again a proper conclusion by the trial court.
III.
Plaintiff further contends that the testimony regarding a conversation with the store manager should have been admitted as an admission against interest constituting an admission of liability. We do not agree.
The pertinent testimony is as follows:
'Q. Okay, Mr. Mendoza, what conversations were had on the telephone with the man to whom you were speaking?
'A. I informed him that I had fallen and at that time he informed me that he knew about it and that they had insurance for this. I asked him at that time what doctor--or he told me at that time to see a doctor. I asked him what doctor he wanted me to see and he said your own family doctor.
'Q. Was that all that was said?
'A. Yes.'
Plaintiff readily admits that the reference to insurance was properly excluded. Kenney v. Grice, Colo., 465 P.2d 401. The only remaining statements to be submitted to the jury would then be the knowledge that the accident had occurred and the advisement to see his own doctor. Such statements did not rise to the dignity of admissions of liability and for this reason were not admissible as an exception to the hearsay rule.
Judgment affirmed.
DWYER and DUFFORD, JJ., concur.