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District Court of Appeal, Third District, California.


Civ. 5847.

Decided: June 30, 1938

Cooley, Crowley & Supple, of San Francisco, Chester O. Hansen, of Fresno, Gregory P. Maushart, of Los Banos, and Stephen P. Galvin, of Merced, for appellant. C. Ray Robinson, R. R. Sischo, Willard B. Treadwell, and James D. Garibaldi, all of Merced, for respondent.

Counsel for respondent is in error in assuming that the court was either deceived or misled by any error in the printing of the testimony contained in the appellant's brief.

This cause was before us upon a motion to dismiss or affirm. At that time the testimony of the plaintiff was carefully read, and the conclusion reached that the motion should be denied. Upon the submission of this cause the testimony of the plaintiff was again read, and after the reading thereof was compared with that portion of the plaintiff's testimony set out in the appellant's brief, and which was copied by this court in its opinion. We did not notice that the words “Was that mark on the tile and on the sidewalk?” had been omitted in the printing of the testimony in appellant's brief. However, a reading of the testimony set out in the opinion of this court indicates that that omission was absolutely and wholly immaterial; it did not in any way tend to change the legal effect of the testimony or vary in the least the proximate cause of plaintiff's injury.

In the opinion of this court we find that we did set forth the following: “A. I looked to see what particularly caused my fall; in packing me back I looked right here where I slipped, and the mark of my foot was right on the tile, slid over in that manner, and the right foot there was a streak that went off here for a foot or so (indicating). Q. On the tile or on the pavement? A. On the pavement.”

We do not deem it necessary to again set forth the testimony of the plaintiff showing beyond any question that when he placed his left foot upon the wet and slippery tiling, it shot from under him; that his right foot made a streak on the sidewalk, and that the left foot slipped on over a portion of the pavement; thus showing absolutely that the proximate cause of the plaintiff's injury was the slipping upon the wet tile.

It is common knowledge that tiling, when wet, is slippery, and in this cause the testimony shows that the tiling was wet, and therefore slippery.

With the omitted words supplied, which have no significance in themselves, the testimony which we have set out in the opinion filed in this cause is not only accurate, but establishes the conclusion irresistibly, which we have reached, that no cause of action has been shown to exist as against the city of Los Banos.

We may add that even though the sidewalk constructed by the city of Los Banos was perfectly flat, the streaks made thereon after the defendant had slipped on the tile would have been practically the same. The negligible slope of the sidewalk is shown by the testimony not to have precipitated the plaintiff's fall. That the plaintiff's body alighted upon the sidewalk is wholly immaterial. The city under such circumstances would no more be rendered liable than would be the case if one were jolted from a street car and alighted upon the concrete portion of a paved street. The jolting from the street car would not injure the person's body; the striking on the paved street would occasion the injury, but the proximate cause would be the jolting of the person from the street car. That is just the case presented by the record here. The proximate cause was the slipping upon the wet and slippery tile.

The verdict of the jury did not conform to the facts of the case showing the proximate cause, and an order of reversal was necessary. This being decisive of the case, other questions presented upon the petition for rehearing need not be considered.

The petition for rehearing is denied.


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