I dissent.
In my opinion this is the sole question necessary to be determined: Did the trial court err in giving an instruction on res ipsa loquitur containing the following statement? “From the happening of the accident involved in this case, an inference arises that a proximate cause of the occurrence was some negligent conduct on the part of the defendant. That inference is a form of evidence and unless there is contrary evidence sufficient to meet or balance it, the jury should find in accordance with the inference.
“When there is any evidence to the contrary, you must weigh all of the evidence bearing upon the issue of defendant’s negligence. If the evidence tending to prove that the accident was caused by a failure of the defendant to exercise the care required of her has a greater weight than the evidence to the contrary, you will find in favor of the plaintiff on that issue.”
Yes. Bach party produced an expert witness who testified as to the cause of the stairway’s breaking. They agreed on the essential propositions that (1) because of the manner in which the stairway was originally constructed and painted, the materials were unduly exposed to the weather and had deteriorated; (2) that such deterioration allowed nails to corrode or rust and also caused dry rot and splitting of the wood at points which might not be apparent to the average person; and (3) that while both the manner of the construction and the subsequent deterioration would be observable to an expert, neither would be a danger signal to a layman.
There was also evidence that both plaintiffs knew the steps to be squeaky and unpainted.
It is the general rule that whether a particular inference shall be drawn is a question of fact for the jury even in the absence of evidence to the contrary. (Burr v. Sherwin Williams Co., 42 Cal.2d 682, 688 [5, 6] [268 P.2d 1041]; cf. Senaris v. Haas, 45 Cal.2d 811, 823 [5a], 827 [13] [291 P.2d 915, 53 A.L.R.2d 124]; Anderson v. County of Santa Cruz, 174 Cal.App.2d 151,155 [3] [344 P.2d 421]; Prosser on Torts (2d ed. 1955) Circumstantial Evidence, Res Ipsa Loquitur, § 42, pp. 199 et seq.)
In the present case the trial court disregarded this rule and, in effect, instructed the jury that plaintiff wife’s injury as a matter of law gave rise to an inference that defendant’s negligence was the proximate cause thereof.
An inference of negligence cannot arise as a matter of law unless the accident was one “which ordinarily does not occur *303in the absence of someone’s negligence.” (Prosser on Torts (2d ed. 1955) Circumstantial Evidence, Res Ipsa Loquitur, § 42, pp. 199 et seq.)
The proximate cause of the accident was admitted by both parties to have been a latent defect caused by the effect of weather on the staircase. A landlord, however, is not guilty of negligence in failing to repair such a defect unless he had knowledge or notice of the defect or reasonable inspection would have disclosed it. (Burks v. Blackman, 52 Cal.2d 715, 718 [4] [344 P.2d 301]; Harris v. Joffe, 28 Cal.2d 418, 423 [1] et seq. [170 P.2d 454]; Rest., Torts, Negligence (1934), § 360, p. 976.)
There was no evidence that defendant had knowledge or notice of the defect; and since the jury could have found that reasonable inspection would not have disclosed the defect, the application of the doctrine of res ipsa loquitur depended upon the determination of a factual issue and was not compelled as a matter of law. It was therefore error for the trial court to instruct the jury that plaintiff wife’s injury as a matter of law gave rise to an inference that negligence by defendant was a proximate cause thereof. (Cf. Faulk v. Soberanes, 56 Cal.2d 466, 470 [4] et seq. [14 Cal.Rptr. 545, 363 P.2d 593].)
It should be noted that since the proximate cause of the accident was admitted by both parties, the jury needed no recourse to an inference in order to determine the cause of the accident, and the only factual issue was whether defendant’s inspection existed at all or was reasonable if it existed. Under the circumstances, the inference of negligence on which the court instructed could only have been understood by the jurors to refer to negligence in failing to inspect. The fact that the accident occurred, however, although it might have given rise to an inference that the stairs were defective in some way, raised no inference of negligence on the part of defendant.
I would reverse the judgment.
Schauer, J., concurred.