SHEA v. CITY OF SAN BERNARDINO

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District Court of Appeal, Fourth District, California.

SHEA et al. v. CITY OF SAN BERNARDINO.*

Civ. 1560.

Decided: December 16, 1935

William Guthrie, City Atty., and Wardwell D. Evans, Deputy City Atty., both of San Bernardino, for appellant. Swing & Swing and Ralph W. Eckhardt, all of San Bernardino, for respondents.

Plaintiffs instituted this action against the defendant city to recover damages for personal injuries alleged to have been sustained by plaintiff Georgia O. Shea, while she was a passenger in an automobile which was being driven on E street in the city of San Bernardino by her husband, John J. Shea. The suit was originally brought against the city and the Atchison, Topeka & Santa Fé Railway Company, but was dismissed as to the last-named defendant on motion of plaintiffs prior to the submission of any evidence in the case. Liability was sought to be imposed on the city in accordance with the provisions of the Municipal Liability Act (Stats. 1923, p. 675) for injuries of the above-mentioned plaintiff which were alleged to have been sustained as a result of a dangerous condition which existed in E street at the intersection of said street with a right of way of the above-named railway company. The action was tried by the court without a jury, and resulted in the entry of a judgment in favor of plaintiffs in the amount of $10,000, from which the defendant appeals.

Appellant's first point is: “That the complaint does not state a cause of action by reason of the allegations of joint negligence of the city and the Railway Company.” In this connection, it is argued that the Municipal Liability Act does not impose liability for negligence on the part of the municipality, but that it is a purely penal statute imposing a liability on the theory of a penalty, and being penal in character must be strictly construed, and that the liability which is thereby imposed cannot be extended by construction or implication. In support of the proposition that the act does not impose liability for negligence, it is pointed out that the word “negligence” does not appear in the statute. In contending that the statute being essentially penal in character must be strictly construed, it is urged that, since the act nowhere provides for the imposition of liability where the defect is charged to have resulted from joint negligence of the municipality and a third person, no liability may properly be imposed under such circumstances, and since the complaint alleged joint negligence on the part of the city and the railway company in maintaining the defective and dangerous place in the street, and it is nowhere charged that the city was solely responsible for the defect, the city may not be properly held liable under the provisions of the statute.

Examination of the complaint discloses that it was undoubtedly drawn on the theory that respondent's injuries were caused by the joint and concurring negligence of the city and the railway company. Passing for the moment the question of the effect of the peculiar statute under which liability was sought to be imposed upon the municipality and treating the action as one brought against two joint tort-feasors, it is clear that no obstacle to recovery against one is presented because of the fact that the complaint charged only joint negligence. It is settled in California that in tort actions, when two or more persons have been concerned in the commission of the tort, the injured party may proceed either jointly or severally against such joint tort-feasors who are both jointly and severally liable, and although the complaint may allege only joint negligence on the part of the joint tort-feasors it nevertheless states a complete and separate individual liability against each party so sued on account of the single act of which complaint is presented. Fowden v. Pacific Coast S. S. Co., 149 Cal. 151, 157, 86 P. 178; Cole v. Roebling Construction Co., 156 Cal. 443, 105 P. 255; Dow v. City of Oroville, 22 Cal.App. 215, 134 P. 197.

In support of its contention that the statute under which liability upon the city is here sought to be imposed is essentially penal in character and should be strictly construed, appellant relies on a number of decisions of courts of last resort in various New England states, notably those of Connecticut, Maine, and Massachusetts. Examination of these authorities discloses that the various statutes under which liability was sought to be imposed against municipalities for injuries alleged to have been suffered because of defective highways were clearly penal in nature and that the phraseology of these statutes is entirely different from the language employed in the California statute. For example, the Connecticut statute under which liability was sought to be imposed upon the town of Sharon for the joint negligence of the town and a third person in the case of Bartram v. Town of Sharon, 71 Conn. 686, 43 A. 143, 145, 46 L. R.A. 144, 71 Am.St.Rep. 225, was denominated the Act of 1672. The pertinent language of this ancient statute is quoted in the opinion as follows: “(1) That if it shall so happen that any person shall lose his life through the defect or insufficiency of any highway in passing over the same (due warning having been given of such defective highway), then the town shall pay a fine of £100 to his family. (2) If it shall so happen that any person shall lose a limb, or sustain other bodily injury, through or by means of such defect aforesaid, the town through whose neglect such hurt is done shall pay the party injured double damages.”

It was decided that the statute was penal in character and should therefore be strictly construed, and that such construction would not permit a recovery when it appeared that the negligence of a third person had concurred with the negligence of the town to produce the injuries for which compensation was demanded.

The language of the California statute does not suggest that it is penal in character. Section 2 of the statute is entitled, “Public Liability for Negligence.” It declares that counties, municipalities, and school districts 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 governing or managing board of such county, municipality, school district, or other board, officer, or person having authority to remedy such condition, had knowledge or notice of the defective or dangerous condition of any such street, highway, building, grounds, works, or property, and failed or neglected, for a reasonable time after acquiring such knowledge or receiving such notice, to remedy such condition or failed and neglected for a reasonable time after acquiring such knowledge or receiving such notice to take such action as may be reasonably necessary to protect the public against such dangerous or defective condition.

While it is true that the term negligence does not occur in the text of the statute it is nevertheless obvious that the liability imposed upon the political subdivisions mentioned in the act is imposed for the negligence of the boards, officers, or employees of such public bodies. The terms “fail” and “neglect” are familiar verbiage in the law of negligence and the employment of these terms by the lawmaking body is strongly indicative of legislative intent to impose liability for negligence and not by way of penalty or punishment. Moreover, section 2 of the statute has formed the basis of numerous actions instituted for the purpose of recovering damages from counties, municipalities, and school districts for the alleged negligence of officers and employees of such public bodies, and it appears to have been uniformly considered that the statute is one which imposes liability for negligence. Among such actions the following may be noted: Gorman v. County of Sacramento, 92 Cal.App. 656, 268 P. 1083, 1088; Brooks v. City of Monterey, 106 Cal.App. 649, 290 P. 540; Mulder v. City of Los Angeles, 110 Cal.App. 663, 294 P. 485; Whiteford v. Yuba City Union High School Dist., 117 Cal.App. 462, 4 P.(2d) 266. In Gorman v. County of Sacramento, supra, the court in discussing the Act of 1923 said: “The second part, as the title also indicates, creates an entirely new and different liability, to wit, the liability of the county, making the county a legal entity, liable for the negligence of its officers in certain cases.” In Whiteford v. Yuba City Union High School Dist., supra, 117 Cal.App. 462, at page 464, 4 P.(2d) 266, 267, the following pertinent language occurs: “The act of 1923 (page 675), as its title shows, creates a liability for negligence only.” In Pittam v. City of Riverside, 128 Cal.App. 57, 16 P.(2d) 768, it was contended by the appellant city that negligence had nothing to do with an action instituted for the purpose of recovering damages for loss of property destroyed by fire which it was charged had escaped from the dumping ground of the city. In rejecting the contention, this court, 128 Cal.App. 57, at page 62, 16 P.(2d) 768, 770, said that knowingly maintaining public property in such condition that it is dangerous to life, limb, health, or safety of the person or property of another is a form of negligence, and that permitting public property to remain in a dangerous or defective condition after notice, without remedying such condition, is also a form of negligence, and that in these respects the action which sought to impose liability under the statute of 1923 involved negligence.

It is our conclusion, therefore, based on the plain language of the statute and the analysis which has heretofore been made of the act by the courts in the above-mentioned cases, that the above-stated contention of appellant is not sustainable.

Appellant's second point is that “the complaint does not state a cause of action because it alleges claim was filed too late.” The complaint alleges that respondents presented and filed with the city clerk of appellant a verified and written claim for damages on November 12, 1931, and that the claim was rejected on November 16, 1931. The complaint also alleges that the injuries which formed the basis for the claim were sustained on April 19, 1931. It is pointed out that in 1931 the Legislature of California enacted a statute (Stats. 1931, p. 2475) providing that a verified claim for damages which are alleged to have been sustained as a result of the dangerous or defective condition of any public street or highway shall be presented in writing and filed with the clerk or secretary of the legislative body of the municipality, etc., within 90 days after the occurrence of the accident, and that this statute became effective on August 14, 1931. It is urged that since the pleading shows that the claim for damages was not filed until November 12, 1931, it fails to state a cause of action because it is apparent from the face of the complaint that the claim was filed too late and is barred by the provisions of the above-mentioned statute. In this connection, appellant concedes, first, that at the time the accident occurred, a claim for damages could have been filed at any time within a year thereafter; second, that the Legislature could not reduce the time within which claims could be filed to a period of time less than the full period provided in the statute. In other words, it is conceded that the statute could not operate retroactively as to claims for damages which had occurred prior to the enactment of the statute, but that as to such claims the adoption of the statute rendered it necessary that they be filed within 90 days after the date on which the law went into effect. Since the statute became effective on August 14, 1931, it is declared that respondents were required to have filed the claim on or before November 11, 1931, and as the complaint shows that it was not filed until November 12, 1931, that the cause of action based on the claim was barred by the statute.

In support of the above-mentioned contention it is declared that the statute was in effect during the entire day of August 14, 1931, and that therefore this date must be included in computing the 90-day period specified in the statute. The inclusion of the above-mentioned date would cause the 90-day period to expire on November 11, 1931, and it is urged that the claim was filed on the 91st day, and that therefore it was filed one day too late.

The contention is not sustainable. In the first place, it is not in accordance with the rule for computation of time declared both in section 12 of the Code of Civil Procedure and in section 12 of the Political Code. These sections provide that: “The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded.” The rule thus announced clearly authorizes the exclusion of the effective date of the statute of limitation on which appellant relies. In the second place, section 10 of the Code of Civil Procedure provides that: “Holidays within the meaning of this code are every Sunday and such other days as are specified or provided for as holidays in the Political Code of the state of California.” Section 10 of the Political Code declares that the eleventh day of November, known as “Armistice Day,” is a holiday, and that all public offices of the state and all state institutions, except the state university, shall be closed on the eleventh day of November of each year. If, therefore, it be assumed that appellant is correct in insisting upon the inclusion of the effective date of the statute, it is apparent that the 90th day of the period of limitation was November 11, 1931, which was a holiday and could not therefore be included in computing the 90-day period under the rule of computation established by section 12 of the Code of Civil Procedure and the like-numbered section of the Political Code.

Appellant's third point is that “the evidence is not sufficient to sustain the judgment because the city did not have control of that portion of the street upon which the accident occurred.” Consideration of this contention necessitates an examination of the evidence which was submitted during the trial of the action.

The evidence showed that the accident occurred at a point on E street in the city of San Bernardino where said street intersects the right of way of the railway company. The record indicates that evidence was produced which tended to prove that the most elevated point of the intersection of the street with the railroad right of way was 2 feet higher than the roadway on each side of the intersection. It also appeared that the north rail of the railway was approximately 3 inches higher than the south rail at the intersection. The testimony of respondents with reference to the occurrence of the accident showed that, on April 19, 1931, the respondent John J. Shea was driving a Hudson sedan automobile in a northerly direction along E street in the city of San Bernardino; that respondent Georgia O. Shea was seated on the rear seat of said automobile; that the vehicle was driven over the intersection at a speed of approximately 20 miles per hour; that when the rear wheels of the automobile passed over the north rail of the railway track the rear part of the vehicle was suddenly thrown upward, causing respondent Georgia O. Shea to be precipitated to the floor of the car, whereby she sustained a fracture of the eighth dorsal vertebra. The evidence further showed that on December 9, 1924, the common council of the city of San Bernardino adopted an ordinance which established the grade of E street between Twenty-Seventh street and the north city limits of the city, that the ordinance established the grade of the street at four points in the east and west lines of E street, each point being 100 feet distant from the center line of the railway right of way, and provided that at all points between the above designated points the grade was established so as to conform to a straight line between said points. It was also shown that in the month of January, 1925, the common council of the city of San Bernardino instituted proceedings for the paving of E street, and that a map showing the plan and profiles for the improvement of the street was prepared by the city engineer and a resolution was passed by the common council to proceed with the improvement work in accordance with the plan and profiles and to the grades indicated on the map theretofore prepared by the city engineer; that a contract for the performance of the work was awarded to a private contractor; that the work was performed in accordance with the 1911 Street Improvement Act (St. 1911, p. 730, as amended); and that thereafter the street superintendent of the municipality reported to the common council that the contract had been completed and the work was accepted. Examination of the map showing the plan and profiles indicates that it purports to indicate “the grade to which work shall be done.” It is, however, apparent that the grade to which the work should be done in the east and west lines of the street across the railroad right of way and for some distance north and south of the right of way was not indicated, and that as a matter of fact no grade was there shown for a distance of approximately 110 feet on each side of the street. It is also apparent from the map that the city council did not provide that the paving of the right of way and of the street for a distance of approximately 100 feet in proximity to the right of way should be done to the grade which had been established by ordinance. Since the work was done under the 1911 Improvement Act, it may be conceded that the city council could have ordered the work to be done to a grade different from the established grade section 3, Street Improvement Act of 1911, St. 1911, p. 733 as amended by St. 1923, p. 106. However, the city which was proceeding to improve a public street within its boundaries was required either to order the work to be done to the grade which had been formally established or, in any event, to some indicated grade. In adopting a plan for the work it was not authorized to leave a portion of the street which was included in the work of improvement without any grade being determined to which the work should there be done. In this connection, it must be remembered that the evidence showed that the paving of the right of way between the tracks and for a distance of two feet on each side thereof was done by the railway company. This was permitted by the provisions of section 77 of the Street Improvement Act (St. 1911, p. 763). Presumably the city relinquished to the railway company the right to establish the grade to which the work of improving the right of way should be done. This the city was not entitled to do. Furthermore, in addition to relinquishing the right to establish the grade of the work over the right of way, it was not entitled to leave an additional portion of the street which it was proceeding to improve for the benefit of the traveling public without making provision for the grade to which the work should there be done.

Appellant insists that the evidence showed that the sole cause of the injuries sustained by respondent Georgia O. Shea was the difference in elevation between the two rails of the railroad rack at the intersection of the right of way with the street; the north rail being 3 inches higher than the south rail. It is then declared that this defect was one over which the city had no control and was powerless to remedy. In particular it is contended that the lowering of the elevation constituted an alteration of a crossing at grade of which the Railroad Commission of California has exclusive jurisdiction. The conclusion of this line of reasoning is that, under such circumstances, no liability could properly be fastened upon appellant under the provisions of the Municipal Liability Act.

The above-described contention of appellant is not persuasive. In the first place, it is obvious that there was a break in the grade of the street at the railway crossing. In the second place, the record shows that evidence was produced by respondents which tended to show that the difference in the elevation of the rails was not the sole factor that contributed to the roughness of the crossing, but that the whole plan of the improvement at the intersection of the right of way with the street including the difference in the elevation of the rails and the break in the grade of the street was responsible for the condition that existed.

Some consideration should be given to the contention that the state Railroad Commission has exclusive jurisdiction to alter crossings at grade and that appellant was powerless to remedy the condition that existed at the railway right of way. This contention is necessarily based on the hypothesis that the difference in elevation of the rails was the single factor that was responsible for the defective condition that existed at the intersection. In giving consideration to appellant's contention that the city was powerless to remedy the defect, the above-mentioned hypothesis will be assumed to be correct. Nevertheless, the contention is not impressive. It must be remembered that the improvement of streets within the boundaries of a city is an affair in which the city is vitally interested. The governing board and officers of the municipality in dealing with such an affair may not complacently declare that they were powerless over a long period of years to take any steps to remedy a defective and dangerous condition that existed in one of the principal streets of the city. If the Railroad Commission had the exclusive jurisdiction to order the north track to be lowered, it was the duty of the city at some time during the 6-year period to call upon the Railroad Commission to order the rail to be lowered and thus to remove an obviously dangerous condition in the street. Finally, if it be assumed that the city was entirely powerless in the premises, had no control over the right of way, and was entitled, so far as the condition which existed at the right of way was concerned, to rely on the lack of power and control to relieve it from liability, it was nevertheless not relieved from the duty to warn persons lawfully using the street that a dangerous condition existed. The evidence showed that no signs were exhibited giving warning to persons approaching the railroad crossing that it was a rough and dangerous crossing. It is our conclusion, based on all the facts and circumstances disclosed by the evidence, that appellant's contention of evidentiary insufficiency because of lack of control by the municipality over the particular place in the street where the accident occurred is not sustainable.

Appellant's fourth point is also based on the alleged insufficiency of the evidence. It is contended that the evidence showed that the city had no actual notice of the alleged defective or dangerous condition which was the cause of the accident and that therefore no liability may properly be imposed upon the municipality. As heretofore indicated, notice to the governing board of the municipality or to some officer or person having authority to remedy a dangerous or defective condition is a prerequisite to the imposition of liability on the municipality under the Public Liability Act. Under the view which we take of the case, appellant's contention of lack of notice is without merit because of our opinion that appellant itself was instrumental in causing the dangerous condition to exist. Black v. Southern Pac. Co., 124 Cal.App. 321, 12 P.(2d) 981. In any event, as was pointed out in Dawson v. Tulare Union High School, 98 Cal.App. 138, 276 P. 424, 426, “The statute does not provide that actual notice is a prerequisite to recovery in such a case. The long-continued existence of a defective condition may establish constructive notice thereof. Wurzburger v. Nellis, 165 Cal. 48, 53, 130 P. 1052; 43 C.J. 1043 to 1057. It may be inferred from the circumstances in evidence that the principal had constructive notice of the defective condition and he certainly had ‘authority to remedy such condition.’ To hold that actual notice is required in such a case would be to place a premium on indifference and neglect of duty. ‘Neglect of duty cannot be made the basis of exemption from liability.’ Kramer v. Los Angeles, 147 Cal. 668, 681, 82 P. 334, 339.” The above language was quoted with approval in Hook v. City of Sacramento, 118 Cal.App. 547, 554, 5 P.(2d) 643, and the court there pointed out that it was a question for the triers of fact to say whether a municipality through the persons “having authority to remedy such condition” failed or neglected, for a reasonable time after acquiring such knowledge or receiving such notice, to remedy the dangerous and defective condition of which complaint was made.

Appellant's fifth point is likewise directed to a claim of evidentiary insufficiency. It is contended that the defective condition, if it be assumed that any existed, was the result of a legislative act. This contention is predicated upon the hypothesis that the dangerous and defective condition which caused the injuries for which damages were awarded came into existence as a result of the grade of E street which was established by an ordinance adopted by the law-making body of the municipality. It is a sufficient answer to this contention to observe that it was not contended by respondents during the trial of the action, and it is not urged by them on this appeal that the grade of E street as it was established by ordinance was the cause of the dangerous condition which existed at the intersection of E street with the railroad right of way. On the contrary, respondents have consistently maintained that the dangerous condition was due to the fact that the improvement of the railroad right of way was not done to the grade established by ordinance, but to a grade different from that which had been thus established.

For the reasons stated, the judgment is affirmed.

JENNINGS, Justice.

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