GERBERICH v. SOUTHERN CALIFORNIA EDISON CO

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

GERBERICH et al. v. SOUTHERN CALIFORNIA EDISON CO., Limited.*

Civ. 9468.

Decided: March 26, 1935

Leonard E. Thomas and Harold A. Jones, both of Los Angeles, for appellants. Roy V. Reppy and E. W. Cunningham, both of Los Angeles, for respondent.

Plaintiffs sued to recover damages for alleged wrongful death of their daughter. At conclusion of the testimony the trial court directed the jury to return a verdict in favor of defendant, and from judgment entered thereon plaintiffs appeal.

At about 9:30 o'clock on a Sunday evening in midsummer deceased was riding with a young man in the rumble seat of an automobile driven by one Renne. The party consisted of two couples from seventeen to nineteen years of age, on their way to the beach. They proceeded south on Alameda street to a point opposite the intersection of Gage avenue (which latter street was not cut through on the west side of Alameda where the accident occurred), and there collided with a pole erected and maintained by defendant in the dirt portion of the highway, causing injuries which resulted in the death of deceased.

Alameda street consisted of a concrete pavement 24 feet wide, flanked on each side by a 2-foot strip of macadam and unpaved the balance of the width of the highway, which was a total of 40 feet except for an added 20-foot strip on the west side, starting at a point opposite the north curb of Gage avenue and extending about 120 feet south. The pole was 1.3 feet in diameter and its center was placed 6 feet from the edge of the concrete, or 4 feet from the edge of the macadam shoulder, and slightly north of a point opposite the prolongation of the south curb of Gage avenue. The pole was black, unmarked, and bore no light. It was a “junction pole,” erected to support wires running north and south on Alameda and east on Gage.

There was evidence that the dirt portion of the road, including the 20 feet additional width at that point, was frequently traversed on both sides of the junction pole when traffic was somewhat congested. The nearest street light was at the next corner. The pole could ordinarily be seen at night by a driver going south, when within 25 to 30 feet of it. North of the pole a few feet was a post painted white and bearing a sign to direct motorists entering Alameda from Gage avenue.

As Renne's car, going south, approached the intersection of Gage avenue, he swung to the left to pass another south-bound car. As he came abreast of it, a third car entered Alameda from Gage, making a left turn to go south. To avoid hitting this third car, Renne swung back sharply to the right, then to the left, and back to the right, running onto the dirt shoulder on the west side of Alameda and going about 40 feet ahead on the dirt until he hit the pole.

Motion for directed verdict in favor of defendant was granted on the following grounds: “First: That the evidence shows no negligence on the part of the defendant Southern California Edison Company. Second: That the evidence shows, without conflict, that the death of plaintiffs' daughter was caused solely by the negligence of the driver of the car in which she was riding. Third: That the evidence shows, without conflict, that the defendant maintained the pole that was struck under an easement that was superior to the right of the public to use Alameda Street as a public highway, and that any use of that street as a public highway by the deceased, or by the driver of the car in which she was riding, was subject to defendant's right to maintain this pole at the place where it was located, and that, insofar as her death resulted from the automobile striking the pole, such a collision was in the nature of a trespass upon the property of this defendant, towit: the pole, at the place where the defendant had the unqualified right to maintain the pole. Fourth: That the evidence shows, without conflict, that the defendant was in the ownership and exercise of a franchise granted by the County of Los Angeles, permitting it to maintain poles along the county highways of said county, and that the pole struck by said Renne was maintained under and in accordance with the terms of said franchise, and therefore affords a complete defense to this action.”

“A directed verdict may be granted ‘only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff if such a verdict were given’. * * * Unless it can be said as a matter of law that, when so considered, no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it upon appeal, or the trial court to set it aside as a matter of law, the trial court is not justified in taking the case from the jury.” In re Estate of Flood, 217 Cal. 763, at page 768, 21 P.(2d) 579, 580.

Evidence was presented showing that predecessors in interest of defendant had run lines over this land as early as 1904, the street being dedicated in 1907. A franchise was later obtained by defendant from the county of Los Angeles, and it was stipulated that they operated under it. The franchise provided among other things that in the maintenance of defendant's equipment “no part of said system or the appliances or attachments thereto shall be so located as to interfere with the use of the highway for travel.” While it appears that the defendant under the franchise was lawfully entitled to run its lines over part of the highway, there is nothing in the evidence nor in the cases cited which would support its suggestion that it was enjoying its easement by virtue of a right “superior to the easement of the public for highway purposes.” The question of law as to whether defendant was legally authorized to install and maintain such a pole could properly be determined by the court; but the issue as to whether or not the pole was being negligently maintained at the time of the accident was properly a question of fact for the jury. Barrett v. Southern Pacific Co., 207 Cal. 154, 277 P. 481. We cannot say as a matter of law that defendant was not negligent in the manner in which it maintained the pole, nor is it within our province to express an opinion as to the finding of fact which the jury might make on this issue. See Stewart v. San Joaquin L. & P. Co., 44 Cal. App. 202, 186 P. 160, and Lim Ben v. Pacific G. & E. Co., 101 Cal. App. 174, 281 P. 634.

The questions whether the driver Renne was negligent and whether such negligence, if any, proximately caused the accident are likewise for the jury. When “an injury was caused both by the continuing negligent act of one defendant and the independent concurring negligent act of a third person, many facts are to be considered in determining the proximate cause (45 C. J. 897-925),” and “whenever the standard of duty is not fixed and there is introduced substantial evidence on the subject of proximate cause it is a question of fact for the jury.” Lacy v. Pacific G. & E. Co., 220 Cal. 97, 29 P.(2d) 781, 783. “Where the original negligence continues and exists up to the time of the injury, the concurrent negligent act of a third person causing the injury will not be regarded as an independent act of negligence, but the two concurring acts of negligence will be held to be the proximate cause of the injury.” Lacy v. Pacific G. & E. Co., supra.

Since the questions as to the negligence, if any, of defendant and of Renne, and as to whether either or both constituted the proximate cause of the accident and the death of deceased were matters of fact which the jury should determine, the motion for a directed verdict should have been denied and the case submitted for their determination.

Judgment reversed.

On Rehearing.

After exhaustive reconsideration upon rehearing we adhere to our original opinion.

SCOTT, Justice pro tem.

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