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District Court of Appeal, Second District, Division 1, California.


Civ. 14451.

Decided: March 09, 1945

Arthur E. Briggs, of Los Angeles, and Perry G. Briney, of San Pedro, for appellant. Parker & Stanbury and Harry D. Parker, all of Los Angeles, for respondent.

Plaintiff sought by the instant action to recover damages for personal injuries which he alleged he sustained when he fell into an open ditch then in course of excavation by defendant in a public street. From a ‘judgment on verdict in open court’ in favor of defendant, plaintiff prosecutes this appeal, urging that the trial court erred (1) in giving and refusing to give certain instructions to the jury and (2) in admitting in evidence testimony of previous acts of third persons.

The ditch into which appellant fell was two feet wide and eight feet deep and was being excavated by respondent under a contract with the County Surveyor of Los Angeles County for the installation of a sanitary sewer along 101st Street near the town of Lennox. At the time the accident occurred, the ditch was about 1160 feet long and extended easterly along 101st Street from Hawthorne Avenue to a point about 90 feet west of Freeman Avenue, and for about 75 feet at its easterly end was open and uncovered and was located about three feet north of the southerly boundary of the street which was also the north boundary line of the property of Mr. Berry. For about five weeks prior to the 14th day of November, 1942, appellant had been calling for Mr. Berry and transporting him to the North American Aviation Plant at Inglewood where both men were employed. On Thursday morning, November 12, 1942, appellant drove his car through 101st Street to the corner of Freeman where he picked up Mr. Berry at a gate in front of his home. Appellant was unable to drive westerly on 101st Street to Hawthorne Boulevard because of the excavation in 101st Street so he turned around about 100 feet west of the Berry place and returned east to Freeman Avenue in order to get out of 101st Street. On Saturday, November 14, 1942, appellant did not drive into 101st Street, which street he had found closed west of the Berry place on the previous Thursday, but parked his car on Freeman Avenue to the east and in front of Mr. Berry's house. Appellant testified that he had no knowledge that the work he had seen in 101st Street two days previously had in the interim proceeded easterly alongside of Mr. Berry's property or that there was an open ditch along said property. It was about 5:30 in the morning when he parked his automobile in front of the Berry house on Freeman Avenue; that it was very dark and there was a very heavy fog; that he encountered no barriers and saw no lights and could not see the ditch. After parking his car, appellant walked westerly along 101st Street near Mr. Berry's north fence on a course parallel with the ditch and between the ditch and the fence until he had proceeded some 28 feet along the open ditch, or a total of 118 feet west from Freeman Avenue, at which point appellant fell into the ditch, sustaining the injuries complained of.

There was evidence introduced on behalf of respondent that certain barriers had been erected near the east end of the open ditch and that red lanterns had been placed every forty feet along 101st Street to give notice of the existence and location of the excavation and that some of these lanterns were lighted and others were not lighted at the time the accident occurred.

Appellant specifies as error the giving of the following instruction by the trial court: ‘The court instructs you that there was no County Ordinance or law or regulation at the time of this accident prohibiting the excavation ditch in question from being left open at night, or in other words requiring the ditch to be covered at night.’ In this connection appellant argues that Ordinance No. 3597 (New Series) of the County of Los Angeles, which was in effect at the time of the accident, makes it a misdemeanor to dig a ditch in a highway without obtaining a permit therefor, and also gives authority to the county road commissioner to impose conditions upon the permittee which are necessary for the safety of persons using the highway; further, that it is ‘clear from the evidence that respondent had no permit to open a ditch and leave it open after sundown, and when he did so he carried on excavation work without a permit’, which amounted to negligence per se.

Said ordinance required only that a permit be obtained before excavation in a highway be made and left it within the discretion of the county road commissioner as to what conditions should be imposed to protect persons using such highway while the work was in progress. It contained no express provision prohibiting the excavation from being left open or uncovered at night, but by section 83, thereof, it provided in the event the permit did ‘not specify what lights, barriers, warning signs or other measures must be erected by the permittee, the permittee shall place and maintain warning lights at each end of such excavation or obstruction and at distances of not more than fifty feet along such excavation or obstruction from sunset of each day to sunrise of the next day, until such excavation is entirely refilled and resurfaced or such obstruction is removed, and every said person shall place and maintain barriers not less than three feet high at each end of said excavation or obstruction at all times until such excavation is entirely refilled or such obstruction is removed.’

As heretofore stated, the record discloses evidence that the excavation was guarded by barriers and warning lights at the time the accident occurred, in accordance with the requirements of section 83, supra, of the county ordinance; therefore the instruction objected to was a fair statement of existing facts and was not prejudicial to appellant's cause.

Appellant next cites as error the refusal of the trial court to give the following instruction (Plaintiff's No. 4):

‘You are instructed that Ordinance No. 3597 (New Series) passed by the Board of Supervisors of the County of Los Angeles, State of California, on May 28, 1940, was in effect at all times involved in this action, and required every person before making any excavation, obstruction, or other work of any nature in, over, along, across or through any highway first to make application in writing to and obtain a permit from the Road Commissioner of said County to make such excavation, obstruction, or other work; and said ordinance further provided that ‘In any permit issued by him the Commissioner may specify what lights, barriers, warning signs or other measures designed to protect the travelling public must be erected by the permittee;’ that the defendant herein, Nick Bulaich, made such application and obtained such permit, and that in both said application and in said permit were written the term and condition of said permit, to-wit: ‘No excavation authorized by this permit shall be left open between sunset and sunrise without first securing written permission from the Road Commissioner.’ If you find from the evidence that the defendant to this action conducted himself in violation of said ordinance and permit, you are instructed that such conduct constituted negligence per se as a matter of law. However, in this connection, the violation of law is of no consequence unless it was the proximate cause of, or contributed in some degree as a proximate cause, to the injury found by you to have been suffered by plaintiff.'

Appellant contends that the foregoing instruction ‘contains a correct statement of the law * * * and that the jury should have been informed that there was such an ordinance requirement in this case instead of being refused such instruction and being given practically identically opposite instructions (objected to under our first objection) that there was no ordinance requiring the excavation to be covered.’

This instruction attempts to predicate negligence per se upon the violation of the county ordinance and also on the violation of the permit issued by the road commissioner. As heretofore stated, the record does not disclose a violation of any of the express terms of the ordinance, and according to the wording of the instruction itself, appellant's theory seems to be that the violation, if any, consisted in failure of respondent to obtain permission in writing from the road commissioner to leave the excavation ditch uncovered between sunset and sunrise.

The witness Mead, construction inspector for the county engineer, testified that he was inspector on the excavation job every day from shortly before eight o'clock in the morning until between half past four and five o'clock every afternoon; that his ‘duties were to see that the job was put in according to plans and specifications and fulfilled all the requirements of the contract. * * * As part of our duties we are supposed to look after the safety of the public * * *.’ That on Friday, November 13th, at 4:30 in the afternoon he observed that ‘there was a barricade ahead of the ditch, on the end of the ditch, and there was red lights approximately 50 feet down the side’; that the lanterns were lighted when he left the job on Friday night; and that he did not at any time while he was on the job notify or require the contractor to cover the ditch over at night.

The jury impliedly found that appellant was guilty of contributory negligence because the evidence clearly shows that at least two days before the accident occurred he had actual notice of the progress of the excavation project easterly from Hawthorne Boulevard toward Freeman Avenue. The jury also impliedly found that there was no causal connection between any possible violation of the ordinance referred to and the injuries sustained by appellant. In this state of the record the refusal to give the instruction complained of was proper.

Appellant's third citation of error is the refusal of the court to give his instruction No. 6: ‘You are instructed that a pedestrian has the right to assume that the street is free from obstructions and in a reasonably safe condition to travel thereon and he need not keep his eyes fixed on the street or look far ahead for defects which should not exist, but such right is subject to the qualification that the pedestrian must use reasonable care; and if you find that the plaintiff used such ordinary care then you will find that plaintiff was not guilty of contributory negligence.’

There was no error in refusing to give this instruction, which is obviously inapplicable to the facts disclosed by the record. While appellant claims he did not have an exact knowledge of the progress made in excavating the ditch, he admitted he had knowledge of sufficient facts to have put a reasonably prudent person on inquiry. With some knowledge of the existing danger, appellant failed to use ordinary care when he parked his car on Freeman Avenue and proceeded to walk in the dark and fog until he fell into the ditch.

Finally, appellant urges error on the part of the trial court in admitting evidence of the theft of pigeons from the coops maintained on Mr. Berry's premises. The purpose of such testimony, as stated by respondent's counsel, was ‘to show that there has been some trouble with mischievous children in the neighborhood, with their pigeon coops, on some previous occasions, and we expect to show that he lit those lights (the red lanterns) the night before (the accident) and observed that they were lit, and the testimony according to the officers was that the lights were out when they arrived. We propose to show that they were not out through any negligence on the part of the defendant.’

The evidence as to whether the red lanterns were lighted at the time of the accident was conflicting and it cannot be said that it was prejudicial to appellant's cause to permit this evidence to be introduced upon the theory that mischievous boys might have tampered with the lights while attempting to break into the Berry premises to get some of the pigeons.

The instant cause was fairly and fully tried and no errors appear in the record.

The judgment is affirmed.

I dissent.

Sec. 82 of Ordinance No. 3597 (New Series) of the County of Los Angeles in effect at the time of the happening of this accident authorizes the Road Commissioner of said county, in any permit issued by him, to specify what lights, barriers, warning signs ‘or other measures designed to protect the traveling public must be erected by the permittee.’ In the permit issued to the defendant herein it was specifically provided that ‘No excavation authorized by this permit shall be left open between sunset and sunrise without first obtaining written permission from the Road Commissioner.’ That the excavation was left open on the night in question was fully established by the evidence, as was the fact that the defendant contractor did not receive permission in writing from the County Road Commissioner to leave the excavation open between sunset and sunrise. In my opinion, plaintiff was entitled to have his Instruction No. 4 given to the jury. Whether defendant's violation of the terms of the permit issued pursuant to the ordinance was the proximate cause of the accident was a question of fact to be determined primarily by the jury under proper instructions. Who can say that, had application been made to the Road Commissioner, he would have authorized the defendant to leave the excavation open at night time, and who can say what the verdict of the jury might have been had they been admonished that under his permit the defendant was not authorized to leave said excavation open between sunset and sunrise? The prejudice to plaintiff which accrued from the court's refusal to give the foregoing instruction was intensified and accentuated by the giving of an instruction quoted in the majority opinion whereby the jury was advised that ‘There was no County Ordinance or law or regulation at the time of this accident prohibiting the excavation ditch in question from being left open at night, or, in other words, requiring the ditch to be covered at night.’ This instruction was in direct contradiction of the evidence and exhibits, which showed that the Road Commissioner, in the exercise of powers conferred upon him by the aforesaid County Ordinance, issued the permit for the excavation here in question upon condition that such excavation should not be left open at night without written permission from the Commissioner and that no such written permission was ever given.

I am also of the opinion that it was error for the court to admit evidence of the theft of pigeons from the premises of Mr. Berry. Such testimony served only to confuse the jury and left them to surmise and conjecture as to whether the ‘mischievous boys', who allegedly stole the pigeons, had tampered with and extinguished the lights around the excavation.

For the foregoing reasons, it is my opinion that the judgment should be reversed and the cause remanded for a new trial.

YORK, Presiding Justice.

DORAN, J., concurs.

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