Pritchard v. Sully-Miller Contracting Co.

On January 2, 1957, plaintiff was riding in an automobile driven by her husband, westbound on Pacific Coast Highway which is a state highway partially located within the city of Long Beach. At the intersection of Redondo Avenue with said highway plaintiff’s husband, while his signal was green, turned left, or south, and when the signal was red for westbound traffic drove into the eastbound lane which then had a green light for eastbound traffic; there was an eight-second lag between the red light for the westbound traffic and the red light for the eastbound traffic. Defendant Montgomery, driving a truck of his employer-defendant, Sully-Miller Contracting Company, approached from the west and as the green light was with him entered the intersection. Mr. Pritchard and Mr. Montgomery each thought he had the right-of-way and a collision occurred which resulted in this lawsuit and a jury’s verdict in favor of defendants Montgomery and Sully-Miller Contracting Company but

The city’s liability must rest upon the Public Liability Act of 1923, now codified in Government Code, section 53051: “A local agency is liable for injuries to persons and property resulting from the dangerous or defective condition of public property if the legislative body, board, or person authorized to remedy the condition: (a) Had knowledge or notice of the defective or dangerous condition, (b) For a reasonable time after acquiring knowledge or receiving notice, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition.”

The lag in the signal timing was no inadvertence; the signals were installed by the city and later were deliberately set with an eight-second delay in favor of eastbound traffic. The major contention of appellant’s counsel is that the State Department of Public Works, through the Division of Highways, has exclusive control over all state highways and that the city cannot be held liable for failure to rectify the dangerous condition created by the lag in the signal because it has no power to enter upon state highway property and make a change in the timing of the signals.

In the immediate vicinity of said intersection the Pacific Coast Highway runs east and west (Redondo north and south) and only the southerly 13 feet of the highway, total width 86 feet, lie within the city of Long Beach; the portion north of that is in the city of Signal Hill.

Section 90, Streets and Highways Code, provides: “The department shall have full possession and control of all state highways and all property and rights in property acquired for state highway purposes. ...” Section 91: “The department shall improve and maintain the state highways, including all traversable highways which have been adopted or designated as state highways by the commission, as provided in this code.” Section 92: “The department may do any act necessary, convenient or proper for the construction, improvement, maintenance or use of all highways which are under its jurisdiction, possession or control.” The word “maintenance” is defined by section 27 as including: “. . . (a) The preservation and keeping of rights of way, and each type of roadway, structure, and facility, in the safe and usable condition to which it has been improved or constructed, but does not include reconstruction or other improvement, (b) The necessary provision for special safety conveniences and devices.” The

The Division of Highways did delegate to the city of Long Beach certain functions pertaining to the intersection in question. On July 25, 1950, it entered into an “Agreement for Maintenance” with the city of Long Beach pertaining generally to maintenance of state highways within the city and providing inter alia: “The City will perform such maintenance work as is specifically delegated to it and the Depart

The signals at this intersection were installed by the city; this was done pursuant to an agreement with the Division of Highways made on August 25, 1952, which provides for construction and sharing the cost thereof, also for maintenance. Section I (c) says: “The City will maintain and operate the entire traffic control signal system and highway lighting as constructed.” On August 8, 1952, before the making of the last quoted contract, an encroachment permit was issued to the city authorizing the construction of this signal system and apportionment of costs. It contains this sentence: ‘ ‘ The timing of the traffic signal system will be determined by the State.” The construction was completed by the city on January 2, 1953.

Originally the signals were set so they would work simultaneously, but changes were made by the city of Long Beach in January, 1953, March, 1953, November, 1955, and December, 1955. It appears that the first change in timing was “instituted by the Police Chief of Signal Hill”; whether it

We do know, however, the manner in which the change of December 22, 1955, came about. It is the one which proximately caused the accident. It reversed the cycle established on November 30, 1955, and was prompted by complaints about the results of that timing. At the request of the engineering department of Long Beach a study was made by Mr. Morehead (traffic signal technician for Division of Highways) and Mr. Frederickson (Assistant Traffic Engineer for Long Beach). They reported independently to their superiors. Mr. S Idles, who was senior Highway Electrical Engineer of Division of Highways, telephoned Mr. Dier, Long Beach City Traffic Engineer, and recommended the change which the city made on December 22, 1955. No warning signs of any kind were installed and apparently there was no discussion about taking such a precaution although Mr. Morehead had recommended installation of a “Watch this Signal” sign facing westbound traffic and placed on the standards at the northwest and southwest corners.

Counsel for appellant argues that no such change was or would have been made by the city except upon an order from the Division of Highways, this because of its exclusive control of the subject. But it is worthy of note that said counsel repeatedly asked Mr. Skiles (called as the city’s witness) whether he had “recommended” this change. After several affirmative answers and the statement that this was done in a telephone conversation, counsel for appellant asked: “As I believe you stated, reading from the memorandum, you suggested the elimination of the leading setup and you suggested that it be replaced with a lagging setup, is that correct? A. Yes, sir. Q. Did you send them any written orders to make that change? A. This I don’t recall. I rather doubt it, though. Q. So far as you can recall right now the change was merely a suggestion by your office to Mr. Dier, is that correct? A. This is the way I would have phrased it, yes.” There is no definite evidence that any such written order or memorandum was made by the Division of Highways. The matter plainly was

Interrogatories having been propounded to the defendant before trial, same were answered by a deputy city attorney in part, as follows: “ 6. What city, company or agency maintains and controls the traffic control device at this intersection ? . . . 6. City of Long Beach. 7. Is there any written agreement between the City of Long Beach and the State of California, or agencies of the State of California, relative to the maintenance and repair of these traffic control devices ? Answer: 7. Yes, there is an agreement. 8. If your answer to the foregoing is yes, please attach a copy of this written agreement to the answer to these interrogatories. Answer: 8. Attached. 9. For what period of time prior to the 2nd day of January, 1957, was the City of Long Beach charged with the duty of maintaining and repairing these traffic control devices at the above mentioned intersection? ... 9. From the date of the completion of the installation, January 2, 1953, to January 2, 1957. ’ ’ The agreement attached to the answer to interrogatory 8 is that of August 25,1952, which says: ‘‘ The City will maintain and operate the entire traffic control signal system and highway lighting as constructed.” Counsel for both sides told us upon oral argument that the encroachment permit of August 8, 1952, was not discovered by the city attorney’s

An unmistakable inference arises from the foregoing that the timing change which misled plaintiff’s husband and virtually created a trap for him was made by the city of Long Beach after consultation with highway department engineers and that the work was not done under any order from the department. It was the voluntary act of the city done on its own behalf. It created a dangerous condition in public property. “It is now settled law that automatic traffic signals are included in the term property as used in the statute.” (Hoel v. City of Los Angeles, 136 Cal.App.2d 295 , 299 [ 288 P.2d 989 ].) Under the decisions the fact that the city itself deliberately created the dangerous condition dispensed with the necessity of the notice contemplated by section 53051, Government Code. (Fackrell v. City of San Diego, 26 Cal.2d 196 , 203 [ 157 P.2d 625 , 158 A.L.R. 773 ]; Wood v. County of Santa Cruz, 133 Cal.App.2d 713 , 717 [ 284 P.2d 923 ]; Ohran v. County of Yolo, 40 Cal.App.2d 298 , 304 [ 104 P.2d 700 ]; Sandstoe v. Atchison T. & S. F. Ry. Co., 28 Cal.App.2d 215 , 219 [ 82 P.2d 216 ] ; Johnson v. County of Fresno, 67 Cal.App.2d 116 , 121 [ 153 P.2d 557 ] ; Murphy v. County of Lake, 106 Cal.App.2d 61 , 67 [ 234 P.2d 712 ]; Bigelow v. City of Ontario, 37 Cal.App.2d 198 , 204 [ 99 P.2d 298 ].) Prom December 22, 1955, to January 2, 1957, the city made no attempt to correct the condition it had created. At this point we are squarely confronted with appellant’s contention that it had no authority to go upon a state highway and make such a correction and hence the ruling in Gillespie v. City of Los Angeles, 36 Cal.2d 553 [ 225 P.2d 522 ], requires the conclusion that it could not incur any liability for failure so to do.

The Gillespie case definitely does hold that “ [i]f the city had no authority to remedy the condition of the state highway where the accident occurred it cannot be liable under the terms of the Public Liability Act for failure to do so.” But the facts of that case are so different from those at bar that the decision does not control the ultimate question we must solve.

The written agreements between state and city undoubtedly delegate to the latter the entire maintenance, i.e., regulation and operation of the traffic signals, with the possible exception of the timing. The encroachment permit says: “The timing of the traffic signal system will be determined by the

The action sanctioned by section 53051, Government Code, is based on negligence (George v. City of Los Angeles, 11 Cal.2d 303 , 308 [ 79 P.2d 723 ]), and the provision for notice to “the legislative body, board or person authorized to remedy the condition” is intended for the protection of the city, not to assist it in inflicting a wrong. The elements of notice and failure to exercise reasonable diligence ordinarily are essential to show culpability on the part of the city but where it has itself created the dangerous condition it is per se culpable and notice, knowledge and time for correction have become false quantities in the problem of liability. It would not seem a reasonable construction of the statute to hold that a city may create a defective and dangerous condition in property outside its limits and be absolved from liability for the consequences upon the theory that it could not correct the danger created by its own negligence. “A statute is to be construed according to the intent of the law-making body. The intent is the vital part and the primary rule of construction is to ascertain and give effect to that intent. If a statute is plain, certain and unambiguous, so that no doubt arises from its own terms as to its scope and meaning, a bare reading suffices and there is no room for construction. The mere literal construction, however, ought not to prevail if it is opposed to the intention of the legislature apparent by the act itself; and if the words are sufficiently flexible to admit of some other construction it should be adopted to effectuate the intention. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.” (Blumenthal v. Larson, 79 Cal.App. 726 , 730 [ 248 P. 681 , 251 P. 241 ].) See also Freedland v. Greco, 45 Cal.2d 462 , 467 [ 289 P.2d 463 ]; 45 California Jurisprudence 2d, section 130, page 637.

Appellant complains of an instruction saying: “When a condition which is inherently dangerous or defective has been created through the carrying out of a plan adopted and authorized by the governing body of a City, no further proof than proof of that fact is needed to charge the City

Refusal of three instructions requested by defendant is urged as prejudicial error. Each of them assumes or asserts as matter of law that the city had no authority to change the timing of the signals in question. Indeed, appellant’s opening brief says that ‘ ‘ [e] ssentially, the same general proposition of law is at the root of each of the assignments of error. ’ ’ The above discussion shows that the refusal of these instructions was not improper. For the same reason there was no error in denial of motions for nonsuit, directed verdict and for judgment non obstante.

The judgment is affirmed.

Fox, P. J., and Herndon, J., concurred.

A petition for a rehearing was denied March 18, 1960, and appellant’s petition for a hearing by the Supreme Court was denied April 20, 1960.