NICHOLSON v. CITY OF LOS ANGELES

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

NICHOLSON v. CITY OF LOS ANGELES.*

Civ. 10304.

Decided: September 13, 1935

Ray L. Chesebro, City Atty., Frederick Von Schrader, Asst. City Atty., and Thatcher J. Kemp, Deputy City Atty., all of Los Angeles, for appellant. Avery M. Blount and Marion P. Betty, both of Los Angeles, for respondent.

Appeal from a judgment in favor of plaintiff and respondent in an action for personal injuries. Respondent, while walking on a sidewalk on Second avenue in the city of Los Angeles, set her heel upon the edge of a section of the concrete sidewalk which had broken away from and was about an inch and a half higher than the next section. Her heel slipped off the elevated section and she was thereby thrown and injured. A Mrs. Gage testified that this defect in the sidewalk had existed for several months to her knowledge, and that she herself had been caused to stumble thereby on several occasions.

Photographs by a civil engineer of appellant city, called as appellant's witness, taken about two months after the accident and showing the defect in the sidewalk, were introduced in evidence by respondent. No objection prior to their introduction was made by counsel for appellant, although an objection was made after the photographs had been received in evidence. No motion to strike was made. While the record is silent as to whether the condition of the sidewalk at the time the photographs were taken was the same as at the time of the accident, it is of some significance that the photographs were produced by appellant, and the testimony of the civil engineer who took them was limited to the fact of having taken them, as was also the testimony of an investigator of the board of public works of the city who accompanied him. There was also evidence that the root of an immediately adjoining tree ran under the section of the sidewalk which had risen, and the photographs show this tree. As it is a matter of common knowledge that sections of sidewalk are frequently raised by the roots of growing trees, the court was warranted in concluding not only that such was the cause of the rising of the section of the sidewalk but that the rising was gradual with the growth of the root. Appellant's suggestions that the sidewalk may have risen as the result of an unprecedented storm eighteen days before the accident or that a broken water main or an earthquake a few days before the accident may have caused the defect are not only without support in the evidence but contrary to the uncontradicted evidence that the defect had existed for several months. Appellant not only failed to make timely objection to the introduction of the photographs, but under the circumstances the photographs were admissible, especially since the evidence, including the pictures themselves, bears the construction that the raised portion was no higher when the pictures were taken than at the time of the accident.

We can see no prejudicial error in the reception in evidence of the fact that the root of the tree ran under the sidewalk. While the question which produced the answer that the root of the tree ran under the sidewalk, “Did you observe anything there that would cause the sidewalk to buckle up or be in that condition?” tended to call for the conclusion of the witness, this was the only testimony on the subject, and the answer, “Yes, the roots of a tree were under it,” is rather the statement of the existence of a physical fact than an opinion as to what caused the sidewalk to rise. Even in the absence of this testimony the court would have been warranted in forming the conclusion that the roots of the tree had caused the sidewalk section to rise.

Appellant contends that it is not liable in the absence of actual knowledge or actual notice on its part of the defect. Respondent claims that constructive knowledge or notice is a sufficient basis for liability. The responsibility of appellant is fixed by the Public Liability Act (Gen. Laws 1931, Act 5619; Stats. 1923, p. 675), which provides that municipalities shall be liable for injuries to persons resulting from the dangerous or defective conditions of public streets and highways in all cases where the governing or managing board of such municipality having authority to remedy such condition “had knowledge or notice of the defective or dangerous condition of such street, highway * * * 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.” This question came before our courts in Hook v. City of Sacramento, 118 Cal. App. 547, 5 P.(2d) 643, 645, in which the appellant city made claim that it had neither actual nor constructive notice of the defective condition there involved. The court said that “the statute does not provide that actual notice or actual knowledge is a prerequisite to recovery in such a case. The existence of a conspicuous defect or dangerous condition in a sidewalk or street, which had existed for a considerable length of time, will create a presumption of constructive notice thereof.” An application for a hearing of this cause in the Supreme Court was denied.

It must be assumed that in adopting the act of 1923 the Legislature was aware of the fact that knowledge and notice may be constructive as well as actual, and the use of the words “knowledge” and “notice” without limitation implies that the knowledge or notice required by the act is not limited to actual knowledge or notice. To now limit the application of the act to those cases in which actual knowledge or notice could be proved by the injured party would be to read into the statute a limitation not contemplated by the legislature. The findings of the court are supported by substantial evidence.

Appellant contends that there is no evidence to support the finding that the sidewalk was constructed by the city of Los Angeles. Since the liability of the city is in no wise dependent upon whether it or some one else constructed the sidewalk, and since the action is not predicated upon any theory of faulty construction but upon a condition which developed thereafter, this finding was unnecessary to the decision and is mere surplusage.

The final point raised is that since the damages recovered were in an amount within the jurisdiction of the municipal court respondent was not entitled to recover the $42.95 costs included in the judgment. This point is well taken (Code Civ. Proc. § 1022) and is conceded by respondent.

The judgment is affirmed, but modified by striking therefrom the sum of $42.95 allowed as costs; respondent to recover costs of appeal.

FRICKE, Justice pro tem.

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