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District Court of Appeal, Second District, Division 2, California.


Civ. 11520.

Decided: September 15, 1937

Bradner & Weil, by Jerold E. Weil, of Los Angeles, for appellant. Ray L. Chesebro, City Atty., Frederick Von Schrader, Asst. City Atty., and Leonard Husar and Bourke Jones, Deputy City Attys., all of Los Angeles, for respondents.

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 & Electric Corporation. Both the City of Los Angeles and the Los Angeles Gas & 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. Rosebud 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 then 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 curbed in a direction westerly; the street was paved in cement lanes or strips southerly of the triangular portion referred to, but the two most easterly lanes terminated at the beginning of the triangular portion, was paved with dark asphalt; two “telephone” poles stood within one foot of the curb at the scene of the accident; there was insufficient light at night to reasonably illuminate the locality; no warning signs of any kind were in place; the conditions were such as to create a hazard that persons traveling northerly on said street at night in either of the two cement lanes or strips nearest the right–hand curb would be led to believe that said street continued straight ahead, but that the light–colored cement lanes or strips would suddenly terminate, and the roadway would apparently “blank out,” and by reason of the manner of paving, lack of warning signs, change in course of direction of curb line, and dip or depression, an automobile would be caused to strike said easterly curb, leave the traveled portion of said street, and strike one or both of said poles; that the dip or depression was so located and so graded as to create a hazard that, should an automobile enter into or upon the dip, the driver would be prevented from turning his automobile to the left to avoid colliding with the curb, but, on the contrary, the dip or depression would cause the automobile to swing to the right and strike the curb, leave the traveled portion of street and strike one or both of the poles; by reason of the said dangerous and defective condition and the negligence and failure of the officials of defendant city plaintiff's automobile was caused to leave the traveled portion of the street and crash against the poles of defendant company. Plaintiff further alleged the filing of a verified written claim with the officials of defendant city and the rejection of the claim; and that defendant city and its officers had knowledge and notice of the dangerous and defective condition of the street for several years prior to the day of the accident.

Plaintiff's cause of action is predicated upon the Public Liability Act of 1923 (Stats.1923, § 2, p. 675), which provides that municipalities “shall be liable for injuries to persons and property resulting from the dangerous or defective condition of public streets, highways, buildings, grounds, works and property in all cases where.” The liability created by this statute was unknown to the common law, but a number of decisions have been rendered since its adoption and it is now established that liability attaches for dangerous and defective conditions where they arise from improper construction of the street in the first instance or are rendered dangerous and defective by reason of conditions which are allowed to exist after construction. Rafferty v. City of Marysville, 207 Cal. 657, 280 P. 118; Bennett v. Kings County, 124 Cal.App. 147, 12 P.(2d) 47; Rodkey v. City of Escondido (Cal.App.) 60 P.(2d) 479; Uttley v. City of Santa Ana, 136 Cal.App. 23, 28 P.(2d) 377; Wilkerson v. City of El Monte, 17 Cal.App.(2d) 615, 62 P.(2d) 790, 792. The statute refers to a “dangerous or defective condition,” but there is no limitation or restriction as to the manner in which the dangerous or defective condition may have been created. In Wilkerson v. City of El Monte, supra, the court said: “If, as constructed and maintained by the city, they created a defective or dangerous condition within the meaning of the Statutes of 1923 * * * there existed a liability of defendant city.” In that case, as in the case of Uttley v. City of Santa Ana, supra, the accident involved a dangerous or defective condition resulting from the construction of depressions across a street.

It has been repeatedly held that as a general rule it is a question for the jury to determine whether a given set of facts or circumstances creates a dangerous or defective condition. Norton v. City of Pomona, 5 Cal.(2d) 54, 53 P.(2d) 952; Barrett v. Southern Pac. Co., 207 Cal. 154, 277 P. 481; Gerberich v. Southern California Edison Co., 5 Cal.(2d) 46, 53 P.(2d) 948. As stated in Hook v. City of Sacramento, 118 Cal.App. 547, 5 P.(2d) 643, no hard–and–fast rule can be laid down in cases of this kind, but each case must stand upon its own particular facts. All of the allegations of the complaint concerning the numerous elements entering into the condition of the highway at the place of the accident must be considered together. Without again setting them forth it is sufficient to say that if the allegations of the complaint should be established by evidence a verdict in favor of the plaintiff against the City of Los Angeles would not be without sufficient support. We may not hold as a matter of law that the allegations fail to show a dangerous or defective condition of the highway.

The ruling of the court in sustaining the demurrer of defendant Los Angeles Gas & Electric Corporation must be upheld. It is elementary that in order to fasten liability upon the defendant it must be shown that its conduct was a proximate cause of plaintiff's injuries. According to the allegations of the complaint the proximate cause was the condition of the street. The poles located beyond the curb may have enhanced plaintiff's injuries. They did not cause the injuries.

The judgment is reversed as to the defendant City of Los Angeles. The judgment is affirmed as to defendant Los Angeles Gas & Electric Corporation.

WOOD, Justice.

We concur: CRAIL, P. J.; McCOMB, J.

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