George v. City of Los Angeles

Plaintiff commenced this action to obtain compensation for damages alleged to have been suffered when his automobile was caused to leave a public street in the City of Los Angeles and to strike poles which had been erected by defendant Los Angeles Gas and Electric Corporation. Both the City of Los Angeles and the Los Angeles Gas and Electric Corporation were named parties defendant. Each defendant filed a demurrer and both demurrers were sustained without leave to amend. From the resulting judgment plaintiff appeals.

From the allegations in plaintiff’s complaint it appears that on April 11, 1936, plaintiff was driving his automobile in a northerly direction along Allesandro Street in the City of Los Angeles in a careful and prudent manner. Bosebud Avenue runs into Allesandro Street from the east but does not cross Allesandro Street. The space at the intersection is referred to, apparently for lack of a better expression, as the “triangular portion”. Plaintiff further alleged that the street was in a dangerous and defective condition; that a dip or depression had been constructed in the street which was such as to cause automobiles proceeding northerly to be thrown from their intended course of travel and into and upon the curbing along the easterly side of said street; the dip or depression lay within the triangular portion of Allesandro Street and consisted of a downward pitch or grading toward the easterly curb and reaching its lowest point at a storm drain which extended approximately nine feet along the curb and two and one-half feet out into the traveled portion of the street; the cement-paved portion of the street had no appreciable slope or pitch toward the curb, but that within the triangular portion the street pitched curbward until the drop became such that, beginning at a point eight feet out in the street from the curb and opposite the storm drain, the street dropped downward toward the curb at such an angle that it was approximately eleven inches lower at the curb than at a point eight feet out from the curb; the street was sixty feet wide and perfectly straight for more than one thousand feet southerly of the place of the accident where the street narrowed from sixty feet to forty feet; the easterly curb line was perfectly straight for over one thousand feet south of the place of the accident, where the curb deviated and curved in a direction westerly; the street was paved in cement lanes

The action is brought under the so-called Public Liability Act of 1923 (Stats. 1923, chap. 328, p. 675), which provides in section 2 thereof that municipalities “shall be liable for injuries to persons and property resulting from the dangerous or defective condition of public streets”. This statute has frequently been before this court and also the District Courts of Appeal of the state. The purpose and scope of the statute have been fairly settled by the decisions hereinafter cited.

In the following cases the same question was before the court: Rodkey v. City of Escondido, 8 Cal. (2d) 685 [ 67 Pac. (2d) 1053 ], and Wilkerson v. City of El Monte, 17 Cal. App. (2d) 615 [ 62 Pac. (2d) 790 ], While the judgment in each of these cases in favor of the injured party was reversed, the reversals were not on the ground that the alleged dangerous condition in the street resulted from the improper construction, but for the reason that the defect was so trivial as not to charge the city with constructive notice of its dangerous character. We, therefore, find nothing in the Public Liability Act of 1923, or in any of the cases decided since its enactment, which justified the contention of the respondent city that in eases arising under said statute, where the in

The rule adopted by the courts of this state is that while a municipality is not an insurer of the safety of travelers on its streets, the duty is imposed upon it by the Public Liability Act of 1923 to exercise ordinary care to maintain its streets in a reasonably safe condition for their use in a proper manner. (Rodkey v. City of Escondido, supra, Nicholson v. City of Los Angeles, 5 Cal. (2d) 361 [ 54 Pac. (2d) 725 ], Waldorf v. City of Alhambra, 6 Cal. App. (2d) 522 [ 45 Pac. (2d) 207 ], Beeson v. City of Los Angeles, 115 Cal. App. 122 [ 300 Pac. 993 ], and Brooks v. City of Monterey, 106 Cal. App. 649 [ 290 Pac. 540 ].) While as a general proposition the acquisition, construction, maintenance and repair of roads and streets are undisputed functions of the government, and a municipality reserves the right to change its street improvement system when it is reasonably wise to do so, yet if in the discharge of this function or in the exercise of this right, it creates a dangerous and defective condition in its public streets, it is liable for any “injuries to persons or property resulting from” such condition provided it had knowledge of such condition and failed or neglected to remedy said condition within a reasonable time after acquiring-such notice. This is the construction placed upon the Public Liability Act of 1923 by the courts in Rafferty v. City of Marysville and kindred cases cited above. This liability is one for negligence (Whiteford v. Yuba City Union High School Dist., 117 Cal. App. 462 , 464 [ 4 Pac. (2d) 266 ]; Brooks v. City of Monterey, 106 Cal. App. 649 , 654 [ 290 Pac. 540 ]), and the question of the municipality’s negligence is for the determination of the jury. (Norton v. City of Pomona, 5 Cal. (2d) 54 [ 53 Pac. (2d) 952 ].)

It is contended by the respondent city that this conclusion gives to the jury, or to the trial court when the case is tried without a jury, the right to pass upon the discretion of the municipal authorities to adopt a system or general plan of improvement of its streets, sidewalks', or other public works. We do not consider that our conclusion goes to that extent. We simply hold that under the statute the municipality is liable for injuries resulting from the dangerous or defective condition of its public street, whether such condition arises

■ Great reliance is placed by the respondent City of Los Angeles upon the two recent cases of Waldorf v. City of Alhambra, supra, and Robertson v. City of Long Beach, 19 Cal. App. (2d) 676 [ 66 Pac. (2d) 167 ]. In each of these cases the injury was caused by a collision of an automobile with a “jog” or “offset” in the street along which the automobile was being operated. It was held in the Waldorf case, and followed in the other cited case, that there is no law of this state which requires a municipality to maintain barriers or warning devices at “jogs” or “offsets” in the streets of the municipality; that in almost every city of size in the state, some streets are laid out and improved without uniformity as to width or direction, resulting in “jogs” or “offsets” and that where there is nothing in the construction of such a street to conceal its real condition, no liability attaches to the municipality for injuries arising out of such construction.

The factual situation in each of these two cases differs materially from that existing in the present action. It is well settled in this state that when dealing with eases falling under the provisions of the Public Liability Act of 1923, each of such cases must depend upon its own state of facts and that no hard-and-fast rule can be applied in the great majority of cases. (Rafferty v. City of Marysville, supra, at page 660; Waldorf v. City of Alhambra, supra, at page 526; Hook v. City of Sacramento, 118 Cal. App. 547 [ 5 Pac. (2d) 643 ].) In each of the Waldorf and Robertson cases, as we have seen, the claimed dangerous condition was a “jog” or “offset” in the street at its intersection with a cross-street, where the abutting property extended beyond the property line on the opposite side of the cross-street. The abutting property was surrounded by a curb some six inches in height, and there was also a sidewalk and parkway within the curb line. These, the court held, constituted barriers or warnings sufficient to avert disaster and readily visible to the driver of an approaching automobile. The defective and dangerous condition which it is alleged existed in the street involved in the present action was within the street itself. The storm drain was constructed as a part of the street and in the traveled portion thereof. There was no barrier between it and any other part of the street to warn those travel

In the complaint it is alleged that the respondent, the Los Angeles Gas and Electric Corporation, constructed, and on the day of the accident maintained, two “telephone” poles on the easterly side of Allesandro Street and inside and within one foot of the easterly curb line of said street. One of said poles was approximately forty feet northerly of the north line of Rosebud Avenue and the other was approximately one hundred and forty feet northerly from said first-

In paragraph VI of said complaint, it is alleged that due to the negligence of the two respondents, as in said complaint alleged, plaintiff’s automobile “was caused to leave the traveled portion of said Allesandro Street and to crash against and collide with said two poles ’ ’ and by reason thereof plaintiff sustained the injuries for which he seeks in this action to recover damages.

We can see no substantial difference in the factual situation in this case in so far as it relates to the respondent Los Angeles Gas and Electric Corporation, and that set out in the case of Norton v. City of Pomona and Southern California Edison Co., 5 Cal. (2d) 54 [ 53 Pac. (2d) 952 ], in which the Edison Company was held liable for damages sustained by Mr. and Mrs. Norton when the automobile which they were operating, by reason of a dangerous condition in the street, ran upon and over the curb and crashed into a pole maintained by the Edison Company within but flush with the curb along said street. In sustaining the judgment of the trial court in favor of the plaintiffs in said action and against the Edison Company, we held as follows: “Herein

Said respondent-seeks to distinguish that case from the instant case by pointing out that in the Norton ease the pole was flush with the curb while in the instant case the poles were approximately one foot from the curb. This effort, in our opinion, has not been successful. In each case there was a dangerous condition in the street which caused the automobile traveling along the street to leave the main traveled portion thereof and to run upon and over the curb and along the parkway within the curb line. Evidently the automobile after running over the curb would have crashed into the pole whether the pole was located one foot within, or flush with the curb. In the case of Gerberich v. Southern California Edison Co., 5 Cal. (2d) 46 [ 53 Pac. (2d) 948 ], the pole into which the plaintiff crashed was located some six feet from the traveled and paved portion of the roadway. Yet the defendant utility company was held negligent in its maintenance.

The judgment as to each defendant is reversed.

Waste, C. J., Edmonds, J., Langdon, J., Houser, J., and Seawell, J., concurred.

Rehearing denied. Shenk J., and Houser, J., voted for a hearing.