WHITING v. NATIONAL CITY

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District Court of Appeal, Fourth District, California.

WHITING v. NATIONAL CITY.†

Civ. 1962.

Decided: October 15, 1936

M. L. Campbell, of Bonita, for appellant. George R. Baird and O. C. Ludwig, both of San Diego, for respondent.

This is an appeal from a judgment in favor of plaintiff in the sum of $2,000 damages for injuries received on October 25, 1934, when she tripped and fell on a broken sidewalk in a public street in the business district of National City.

Defendant is a municipal corporation of the sixth class, and this action was brought against it under the provisions of section 2 of the Public Liability Act (St.1923, p. 675). This act, among other things, makes the municipality liable for injuries to persons which result from the dangerous or defective condition of public streets and property in cases where the board, officer, or person having authority to remedy the condition had knowledge or notice of the same and failed for a reasonable time after receiving such knowledge or notice to remedy such condition or to take such action as might be reasonably necessary to protect the public against injury. It is not questioned that the city council of National City was its governing body and had authority to remedy a dangerous or defective condition in its streets and sidewalks.

In his opening brief, counsel for defendant states the following grounds for a reversal of the judgment:

“(1) Is the evidence sufficient to show that the defendant city had knowledge or notice of the defect in the sidewalk?

“(2) Was the evidence sufficient for the Court to find as a matter of law that the sidewalk in question was defective?

“(3) Did the Court err in its construction of the Statutes of 1923, p. 675, as to the words ‘knowledge or notice?”’

On the question of the dangerous or defective condition of the sidewalk, the trial court found as follows:

“That in the particular sidewalk herein described and in question herein there existed, on and before the 25th day of October, 1934, a condition as follows: That said sidewalk was made up of squares or areas of pavement with expansion joints between them; that one such square or area was raised at its easterly edge above the square or area of said sidewalk next adjoining it on the east; that at its highest point said square or area was raised about three–quarters of an inch above the surface of the square or area next adjoining it on the east; that in addition, the space occupied by the expansion joint between said raised square or area and the square or area next adjoining it on the east made a depression, to the bottom of which from the highest point of said raised block, square or area there was a fall of about one inch; that said raise extended for several feet to the north across said sidewalk, gradually lessening in height to a point where the surfaces of said squares were approximately even or level.

“That the condition of said sidewalk constituted an unsafe and defective condition in said sidewalk.”

It is to be observed that the trial court found the condition of the sidewalk to be “unsafe and defective” instead of “dangerous or defective,” the language used in the statute. We can attach no importance to the difference in the language of the finding and that of the statute. It has been held that the words “unsafe” and “dangerous” are synonymous and possess a like meaning. Houston & T. C. R. Co. v. Smallwood (Tex.Civ.App.) 171 S.W. 292; Hanson v. City of Anamosa, 177 Iowa, 101, 158 N.W. 591; Coates v. Town of Canaan, 51 Vt. 131. Therefore, the finding that the condition of the sidewalk was unsafe is equivalent to a finding that it was dangerous.

In addition to the evidence received in court the trial judge inspected the sidewalk. What he saw must be considered as evidence supporting the findings and judgment. Gray v. Magee, 133 Cal.App. 653, at page 658, 24 P.(2d) 948; Ethel D. Co. v. Industrial Acc. Comm., 219 Cal. 699, 28 P.(2d) 919.

A statement of the elements necessary to be proved by a plaintiff in order to make out a cause of action in cases of this kind have been so recently detailed by the Supreme and Appellate Courts that it is unnecessary to repeat them here. See Rafferty v. City of Marysville, 207 Cal. 657, 280 P. 118; Watson v. City of Alameda, 219 Cal. 331, 26 P.(2d) 286; Hook v. City of Sacramento, 118 Cal.App. 547, 5 P.(2d) 643, 645; Pittam v. City of Riverside, 128 Cal.App. 57, 16 P.(2d) 768; Crone v. City of El Cajon, 133 Cal.App. 624, 24 P.(2d) 846.

On the question of the sufficiency of the evidence to prove notice of the dangerous or defective condition of the sidewalk, various witnesses testified that the break had existed unchanged for several years before the accident, and that there had been other accidents similar to the one suffered by plaintiff. Four members of the city council, two superintendents of streets, and the city clerk of National City each testified that prior to the accident in question each had walked over the broken sidewalk, some of them many times.

It has been held that “It is a question of fact for the trial court to determine under all the facts and circumstances in evidence whether the dangerous condition in the sidewalk has existed for a sufficient length of time to constitute constructive notice and also whether a reasonable time to remedy the condition has elapsed. Wise v. City of Los Angeles [9 Cal.App.(2d) 364], 49 P.(2d) 1122 [50 P.(2d) 1079]; Hook v. City of Sacramento, 118 Cal.App. 547, 554, 5 P.(2d) 643.” Cressey v. City of Los Angeles, 10 Cal.App.(2d) 745, 53 P.(2d) 172, 173.

When we apply this rule to the facts of the instant case, the conclusion follows that the finding that the city had sufficient notice of the dangerous and defective condition of the sidewalk is supported by the evidence. The defect was in a sidewalk on a main street of the city and had existed in about the same condition for a number of years. Long–continued existence of a defect has been held to indicate constructive notice to the city. Boyce v. San Diego High School District, 215 Cal. 293, 10 P.(2d) 62. The responsible officers of the city had passed over the broken sidewalk many times before the accident. They may be charged with notice of that which is plainly within their vision. Hook v. City of Sacramento, supra.

Defendant relies upon the case of Nicholson v. City of Los Angeles, 5 Cal. (2d) 361, 54 P.(2d) 725, as supporting its contention that there was not sufficient notice of the defect to charge the city with liability. A study of that case has led us to the conclusion that it does not conflict with anything we have said. The only evidence in that case on the question of notice was that a small break, somewhat similar to the one described in the instant case, had existed for several months in a sidewalk in Los Angeles. There was no evidence in the record that any officer, agent, or employee of the city had passed over the broken sidewalk. In the instant case the fact that the responsible officers of National City had walked over the sidewalk many times should be sufficient to have charged the city with actual notice of the condition.

Defendant next urges that the evidence is insufficient to support the finding that the broken walk rendered it dangerous and defective. That question is one of fact addressed to the trial judge when he is sitting without a jury. That being true, and the trial judge having viewed the portion of the sidewalk in question and heard the witnesses describe it, and having found that the condition was dangerous and defective, we cannot as a matter of law say that the break in the walk did not constitute a defective condition which was dangerous for those using it. In Hook v. City of Sacramento, supra, it was said:

“No hard and fast rule can be laid down in cases of this kind, as to the size or character of the hole or depression in a sidewalk or street that would constitute a dangerous or defective condition within the meaning of the statute, but each case must stand upon its own particular facts, and in the case at bar, under the evidence above set forth, we are not justified in holding as a matter of law that the hold or depression in said apron did not constitute a dangerous and defective condition in the sidewalk, or that respondent, by the exercise of ordinary care for her own safety, should have seen said depression and avoided the accident.

“As above stated, all these questions whether the apron or sidewalk were or were not in a reasonably safe condition, whether the respondent was or was not exercising due care in walking down said incline, were questions, under the conflicting evidence, addressed to the jury, and its verdict here on these questions is final. Heath v. Manson, 147 Cal. 694, 82 P. 331; Wile v. Los Angeles Ice & Cold Storage Co., 2 Cal.App. 190–192, 83 P. 271; Taylor v. Manson, 9 Cal.App. 382, 99 P. 410; Sharpless v. Pantages, 178 Cal. 122, 124, 172 P. 384; Granucci v. Claasen, 204 Cal. 509, 269 P. 437, 59 A.L.R. 435.”

The case of Nicholson v. City of Los Angeles, supra, does not conflict with anything we have just said. The only question decided in that case was the insufficiency of notice of the broken sidewalk and not whether the condition was dangerous or defective as a matter of fact.

The last assignment of error does not require separate consideration, as what we have already said sufficiently covers it.

Judgment affirmed.

MARKS, Justice.

We concur: BARNARD, P. J.; JENNINGS, J.

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