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District Court of Appeal, Second District, Division 3, California.


Civ. 15915.

Decided: January 30, 1948

Irving M. Smith, City Atty., Clifford E. Hayes and Dewey L. Strickler, Deputies City Atty., all of Long Beach, for appellant. A. J. O'Conner and George J. Hider, both of Los Angeles, and James F. Curtin, of Long Beach, for respondent.

Appeal by defendant from a judgment for plaintiff entered on a verdict of a jury in an action for damages for personal injuries.

The evidence viewed in the light most favorable to respondent-plaintiff (In re Estate of Bristol, 23 Cal.2d 221, 223, 143 P.2d 689), establishes the following facts.

On a very dark night in February, 1944, respondent, a woman seventy years of age, accompanied by her granddaughter, an adult, was walking on the public sidewalk on the west side of Pine Avenue, in a residential section of Long Beach. As she was walking along, her foot caught in a hole in the sidewalk, causing her to fall and suffer severe injuries. The hole was at least three inches deep. It was irregular, eight or nine inches wide, and ten or eleven inches long. The hole was of such size and depth that respondent's granddaughter was able to stick her hand into it. Respondent's whole shoe went into the hole. After she fell, respondent had difficulty getting her foot out of the hole. The night was so dark that respondent could not see the sidewalk as she walked along. The sidewalk at the point where respondent fell had been in bad condition for a number of years. It had been torn up and had holes of varying depths. Before the accident one hole had been filled by a person living near the scene. Respondent had not, previous to the accident, used the sidewalk on the west side of Pine Avenue. There was no evidence of actual notice to appellant of the condition of the sidewalk.

The record presents a situation which should be called to the attention of the Bar. It occurs frequently. In arguing the points it urges for reversal, appellant repeatedly refers to exhibits introduced in evidence at the trial. The exhibits are not before us. In its notice to the clerk of the superior court to prepare a clerk's transcript, appellant requested that there be included therein ‘such original exhibits as may not be conveniently transmitted to the reviewing court.’ So far as appears, no other move has been made by either party to see that the exhibits were transmitted to the clerk of this court.

The Rules on Appeal (22 Cal.2d 1), provide that the appellant in his notice to the clerk to prepare a clerk's transcript shall designate any exhibits which he desires incorporated in the record on appeal. This provision means that the appellant must designate all exhibits which he desires to have before the reviewing court on the appeal. He is required to specify such exhibits as he desires copied in the clerk's transcript. The rules make similar provision for designation and specification by the respondent. The originals of exhibits designated but not specified by either party for copying go to the reviewing court provided Rule 10(b) is complied with. The clerk copies in his transcript only such exhibits as he is directed to copy by the notice of one of the parties. Rule 10(b) provides, ‘When the parties shall have been notified by the clerk of the reviewing court that an appeal has been set for hearing, each party shall file with the clerk of the superior court a notice specifying such of the original exhibits or affidavits designated by any party for inclusion in the record, as he desires transmitted to the reviewing court, and the clerk shall immediately transmit them to the reviewing court. * * * The reviewing court at any time may order that any original exhibits or affidavits designated by the parties as a part of the record be transmitted to it by the clerk of the superior court.’

It is the duty of counsel, in the proper representation of his client, if he desires the reviewing court to consider exhibits admitted in evidence or rejected, to see to it that the exhibits are either copied in the clerk's transcript or that the originals are transmitted to the clerk of the reviewing court. It is not the function of the reviewing court to see that the exhibits are transmitted, and it should not be burdened with that task. The designation of appellant in its request for preparation of the clerk's transcript that there be copied therein ‘such original exhibits as may not be conveniently transmitted to the reviewing court’ is wholly insufficient for any purpose. The burden is on counsel and not on the clerk to determine which exhibits, if any, ‘may not be conveniently transmitted to the reviewing court.’ The Rules on Appeal became effective July 1, 1943, and counsel should not longer be permitted to plead ignorance of their provisions. The result in the present case is that we may not consider any statement in the briefs as to what the exhibits show.

Appellant urges (1) that the court erred in denying its motion for a judgment of nonsuit, (2) that the court erred in denying its motion for a directed verdict, (3) that the court erred in admitting a stipulation of facts in evidence over the objection of appellant, (4) that the court erred in refusing to give an instruction requested by appellant, and (5) that the court committed prejudicial ‘misconduct’ in the presence of the jury.

Appellant's first and second points will be considered together. A cursory reference to the facts, all of which were in evidence before the motions, demonstrates the complete lack of merit in these claims. The rules governing the decision of a motion for a judgment of nonsuit and for a directed verdict are well known and need not be repeated. As to a motion for a judgment of nonsuit see Blackman v. Howes, 82 Cal.App.2d 275, 185 P.2d 1019. The power of the court to direct a verdict is subject to the same limitations as is its power to grant a motion for a judgment of nonsuit. Pellett v. Sonotone Corporation, 26 Cal.2d 705, 708, 160 P.2d 783, 160 A.L.R. 863.

Appellant's argument is that although witnesses for respondent testified that the hole was at least three inches deep, the photographs of the sidewalk introduced in evidence as exhibits by respondent show that it was less than an inch in depth and that therefore the testimony of the witnesses should be disregarded. As we have said, the exhibits are not before us; but if they were here, we would be compelled to assume that the jury accepted the testimony of the witnesses and disregarded the photographs either as inaccurate or as not portraying the hole, or that the jury concluded that the photographs did not show the depth of the hole. It is further argued that the testimony of the witnesses was uncertain and unreliable.

Thus premising its argument, appellant says that the hole was less than one inch in depth; that it was therefore a minor and inconsequential defect; that being such, its long continued existence did not constitute constructive notice to appellant. It says that under the cases construing the Public Liability Act of 1923, Stats. 1923, p. 675, Deering's Gen.Laws, 1937, Vol. 2, Act 5619, under which liability is sought to be imposed, in order to constitute constructive notice, the ‘hole’ must be dangerous in character so that its use by the public would be likely to cause injury and that its existence has been long continued, citing Nicholson v. City of Los Angeles, 5 Cal.2d 361, 54 P.2d 725, and Whiting v. National City, 9 Cal.2d 163, 69 P.2d 990.

The flaw in appellant's argument is in its assumption that the hole was less than one inch deep. Respondent's evidence was that the hole was at least three inches deep. We may not weigh the evidence. DeYoung v. DeYoung, 27 Cal.2d 521, 526, 165 P.2d 457. It was held in Nicholson v. City of Los Angeles, supra, that the long continued existence of a break in a sidewalk, with a difference in grade of an inch and a half, did not give constructive notice of such condition; that to charge the city with constructive notice, some element of conspicuousness or notoriety must be shown, that it must be made to appear that a reasonable inspection would have disclosed the defect or condition and that the existence of a conspicuous defect or dangerous condition of a street or sidewalk for a considerable length of time will create a presumption of constructive notice. In Whiting v. National City, supra, it was held that a square of concrete sidewalk which was raised about three-fourths of an inch above the surface of the adjoining square, which condition had remained unchanged for about six years, was a minor defect as a matter of law and was not sufficient to charge the city with constructive notice. Patently, these cases have no application here, where the general condition of the sidewalk had been bad for years, where for a number of years there had been holes of varying depths in the sidewalk, and where the hole which caused the fall was at least three inches deep.

Eastlick v. City of Los Angeles, 29 Cal.2d 661, 177 P.2d 558, 170 A.L.R. 225, is parallel to the instant case. In the Eastlick case the court stated (pages 672, 673 of 29 Cal.2d, page 565 of 177 P.2d): ‘The broken condition of the sidewalk consisted in a three to four-inch overlapping of the cement above the adjoining surface. There was testimony that this condition had existed for at least two years prior to plaintiff's accident. Whether such break in the sidewalk created a dangerous condition and the city was chargeable with notice of its existence were questions of fact for the jury to resolve. George v. City of Los Angeles, 11 Cal.2d 303, 308, 79 P.2d 723; Bauman v. City and County of San Francisco, 42 Cal.App.2d 144, 157, 108 P.2d 989; Lorraine v. City of Los Angeles, 55 Cal.App.2d 27, 30, 31, 130 P.2d 140; Sheldon v. City of Los Angeles, 55 Cal.App.2d 690, 693, 131 P.2d 874. * * * The cases of Nicholson v. City of Los Angeles, 5 Cal.2d 361, 54 P.2d 725, and Whiting v. National City, 9 Cal.2d 163, 69 P.2d 990, have no application here in relation to the establishment of defendant's liability, where it cannot be said that the break in the sidewalk was a minor or trival defect as a matter of law. Balkwill v. City of Stockton, 50 Cal.App.2d 661, 669, 123 P.2d 596; Sheldon v. City of Los Angeles, supra, 55 Cal.App.2d 690, 693 [694], 131 P.2d 874.’ See, also, Laurenzi v. Vranizan, 25 Cal.2d 806, 811, page 812, 155 P.2d 633, at page 636, where the hole in the sidewalk was two to two and one-half inches deep, and it was held that: ‘it cannot be said as a matter of law that the defect was such a minor defect to be insufficient to impose liability upon the city for injuries resulting therefrom,’ and that the trial court erred in granting a motion for judgment of nonsuit; Fackrell v. City of San Diego, 26 Cal.2d 196, 205, page 206, 157 P.2d 625, page 630, 158 A.L.R. 773, in which it is said that: ‘Whether a given set of circumstances creates a dangerous or defective condition is primarily a question of fact’; Jones v. City of Los Angeles, 74 Cal.App.2d 183, 168 P.2d 480, where the hole in the sidewalk was four inches deep; and Perry v. City of San Diego, 80 Cal.App.2d 166, 170, 181 P.2d 98.

We cannot say as a matter of law that had appellant exercised reasonable supervision over the sidewalk it would not have discovered the condition a sufficient time before the accident to have had a reasonable opportunity to guard against injury from it. The issue as to the city's liability on the evidence was properly for the jury and the court did not err in denying appellant's motion for a judgment of nonsuit or its motion for a directed verdict.

During the progress of the trial and before the plaintiff rested, a consultation took place between the court and counsel at the bench in the absence of the jury. The record is silent as to what occurred until the court said: ‘Stipulated that James Kincaid at and prior to the time of the accident involved in this case was Superintendent of Streets of the City of Long Beach; that at the time of the accident there were about 16 employees working under him in the street department; that the city had adopted and did pursue, as a standard of conduct with respect to the maintenance and repair of its streets the following rule, namely: That whenever any defect in a sidewalk actually was known or reported to the Department of the same to the depth of one-half inch or more, it was repaired by the city; that the city was divided into five areas or districts for the purpose of maintenance and repair; that because the Street Department was at that time shorthanded, no particular individuals were then assigned to the task of inspecting these respective areas, but that it was the duty of all of the employees of said Department from day to day, as they pursued their various duties, to make an observance of the city streets to ascertain if there were any such defects in the sidewalk as needed repair, pursuant to the above-mentioned standard of conduct; that Mr. Kincaid, Superintendent of Streets, was the official charged with the performance or supervision of the performance of the duties above-mentioned.’ Counsel for appellant then said: ‘I desire to object to the introduction of any evidence on the ground that it is incompetent, irrelevant and immaterial and doesn't tend to show whether or not this was a dangerous or defective condition; is merely a standard set up to prevent further deterioration of the street and was not to be taken as an indication in any manner that we believed it to be a dangerous or defective condition, but was merely a precautionary measure that has nothing to do under the law to set up any standard other than is defined in the law itself. It does not prove or disprove any of the issues involved in this case.’

The court did not rule upon the objection at that time. After further testimony the attorney for respondent asked that the stipulation be read to the jury. Counsel for appellant then renewed and enlarged upon his objection to the reception of the stipulation in evidence. The objection was overruled. The stipulation was then read to the jury by the reporter.

Appellant claims that the court erred in admitting the stipulation in evidence. In the absence of any record as to what occurred between the court and counsel at the bench before the court stated the stipulation, we must assume that appellant stipulated to and admitted the truth of the facts set forth in the stipulation, but objected to their admissibility in evidence. The trial judge admitted the stipulation in evidence upon the theory that the facts therein stated constituted an admission ‘as to what was reasonably necessary for the safe maintenance of the street.’ The stipulation was that the ‘City’ had adopted and did pursue the rule stated. Appellant's argument that the Superintendent of Streets had adopted and pursued the rule and that therefore it was not an admission of the city is not borne out by the stipulation.

Evidence may be given upon a trial of the act, declaration or omission of a party. Code Civ.Proc., sec. 1870, subd. 2. Any fact is admissible in evidence from which the facts in issue are logically inferable. Code Civ.Proc., sec. 1870, subd. 15. It is an elemental rule of evidence that the statements or conduct of a party tending to refute his position are admissible. Mr. Justice Holmes, in Texas & P. R. Co. v. Behymer, 189 U.S. 468, 23 S.Ct. 622, 623, 47 L.Ed. 905, said that: ‘What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.’ Mr. Wigmore says that, ‘the regulations adopted by an employer for the conduct of a factory or a transportation system, may be some evidence of his belief as to the standard of care required, and thus of the negligent nature of an act violating those rules.’ Wigmore on Evidence, 3d Ed., Vol. 2, p. 132, sec. 282. Shearman and Redfield say that, ‘It has been said that ‘a violation of rules previously adopted by a defendant in reference to the safety of third persons has generally been admitted in evidence as tending to show negligence of the defendant's disobedient servant for which the defendant is liable,’' citing King v. Interborough R. T. Co., 233 N.Y. 330, 333, 135 N.E. 519. Shearman and Redfield on Negligence, Vol. 3, p. 1281, sec. 506.

Evidence of a custom of a defendant and its violation is held admissible as some evidence of negligence. Scott v. Gallot, 59 Cal.App.2d 421, 138 P.2d 685, was an action arising out of alleged negligence of the defendant. It was held that a motion for a new trail was properly granted because the court had erroneously stricken evidence introduced by the plaintiff of a custom of the defendant which it had violated. See, also, Thomas v. Southern Pacific Co., 116 Cal.App. 126, 131, 2 P.2d 544; Mace v. Watanabe, 31 Cal.App.2d 321, 323, 87 P.2d 893; Burke v. John E. Marshall, Inc., 42 Cal.App.2d 195, 203, 108 P.2d 738.

An ordinance of a municipality prescribing rules and regulations for the conduct of its employees is admissible in evidence as an act or declaration of a party concerning a matter involved in the suit. Jordan v. City of Lexington, 133 Miss. 440, 97 So. 758; Hebenheimber v. City of St. Louis, 269 Mo. 92, 189 S.W. 1180; McLeod v. City of Spokane, 26 Wash. 346, 67 P. 74; City of Indianapolis v. Gaston, 58 Ind. 224; Smith v. City of Pella, 86 Iowa 236, 53 N.W. 226.

We are dealing here with rules and regulations of the party itself. They are admissible, as they are virtually admissions, in the language of the trial judge, ‘as to what was reasonably necessary for the safe maintenance of the street.’ Wigmore on Evidence, 3d Ed., Vol. 2, p. 501, sec. 462.

Appellant engages in an extended argument and citation of cases from other jurisdictions to the effect that rules and regulations of a railroad company for the conduct of its servants in the operation of its trains should not be admitted in evidence in this state. It says that even if such rules should be held admissible the principle should not be extended to rules and regulations of a municipal corporation for the conduct of its servants in the maintenance of its streets. Counsel apparently overlooked the recent case of Simon v. City and County of San Francisco, 79 Cal.App.2d 590, pages 597, 598, 180 P.2d 393, page 397, where the court stated:

‘Defendants argue that the rules of a carrier are not admissible and may not be considered on the issue of a carrier's negligence where the injured party has no knowledge of the rules and did not rely upon them. That was undoubtedly the rule announced in Smellie v. Southern Pac. Co., 128 Cal.App. 567, 18 P.2d 97, 19 P.2d 982, by the District Court of Appeal, but, the Supreme Court, in denying a hearing in that case, added the following comment at page 583 of 128 Cal.App., at page 982 of 19 P.2d: ‘Such denial, however, shall not be construed as an approval by this court of that portion of the opinion of the District Court of Appeal which holds that admission of evidence of the rules adopted by the defendant for the government of its business was incompetent and prejudicial.’ In thus qualifying the appellate court opinion the Supreme Court undoubtedly had in mind its earlier decision in Gett v. Pacific G. & E. Co., 192 Cal. 621, 221 P. 376. In that case, the court, after referring to the action of the motorman of defendant's streetcar in suddenly stopping his car in such manner as to blockade a cross-street, stated at page 625 of 192 Cal., at page 378 of 221 P.: ‘* * * his act in so doing was in violation of an operating rule of the defendant, forbidding its employees to stop the cars so as to block cross-streets or cross-walks. The existence of this rule, of course, did not render its violation by defendant's employees negligence per se, but it was a circumstances proper to be considered by the jury in determining whether or not they were negligent.’

‘In the more recent case of Nelson v. Southern Pacific Co., 8 Cal.2d 648, 67 P.2d 682, the Supreme Court negatively reaffirmed the doctrine of the Gett case in the following language at page 654 of 8 Cal.2d, at page 685 of 67 P.2d: ‘It cannot be said that the exclusion of the respondent's time-table was erroneous. While the rules of operation are admissible (Gett v. Pacific Gas & Electric Co., 192 Cal. 621, 221 P. 376 * * *), we fail to see the materiality of the time-table to the situation under scrutiny.’ It follows that the rules were admissible and that it was a question of fact for the jury and not a question of law for the court to determine whether the conduct of the motorman, under the circumstances, constituted negligence.' See Shearman and Redfield on Negligence, Vol. 3, p. 1202, sec. 481; Chicago & A. R. Co. v. Eaton, 194 Ill. 441, 62 N.E. 784, 88 Am.St.Rep. 161; Stevens v. Boston Elevated R. Co., 184 Mass. 476, 69 N.E. 338; Bilodeau v. Fitchburg & L. St. R. Co., 236 Mass. 526, 128 N.E. 872; McNeil v. New York, N. H. & H. R. Co., 282 Mass. 575, 185 N.E. 471.

Appellant misapprehends the purpose and effect of the introduction of the stipulated facts in evidence. It argues that the consequence was that the jury was told thereby that the legal standard of conduct required of appellant was that stated in the stipulation. Appellant was not charged with nor was the jury told that appellant was charged with, a violation of the stipulated facts. The jury was not told that the city was liable for injuries to a person resulting from a failure to enforce or obey its rules or regulations. The jury was specifically instructed, in deail and at length, that respondent's cause of action, if any she had, ‘is based upon, and must meet the requirements of, a law of this state known as the Public Liability Act.’ The stipulation was purely evidential. Proof of the rules and regulations of appellant did not make their infraction by its employees a violation of the Public Liability Act. By admission of the stipulation the court did not hypothesize liability of the city on a violation of the stipulated facts. The stipulated facts did not serve as the legal standard of liability. The admission of the stipulation in evidence was proper.

Appellant's next point is that the court erred in refusing to give the following instruction requested by appellant to the jury: ‘You are further instructed that the fact that the City Street Department may have adopted a standard of conduct with regard to defects in sidewalks which should be repaired, is not to be taken as evidence by you that said defects necessarily constitute dangerous and defective conditions which would render the City liable in damages in event of accidents occurring at the location of such defects.’ The instruction was properly refused. There was no evidence that the ‘City Street Department’ had adopted a standard of conduct. The stipulation was that the ‘City’ had adopted and did pursue specified rules and regulations for the repair of sidewalks and for the conduct of its employees with respect thereto.

Appellant's last point to the effect that the trial judge committed prejudicial error in the presence of the jury is frivolous. After resting its case, appellant's attorney stated he desired to make another motion ‘in chambers,’ to which the court replied, ‘Make the motion and I will rule.’ It is this statement which appellant claims constituted ‘misconduct.’ The motion was one for a directed verdict. Appellant says that the motion was made and ruled upon at the bench out of the hearing of the jury. As heretofore stated, it was denied. The court's statement was entirely warranted. It is one which is frequently heard in the trial courts. It was merely a request to counsel to state his motion. The argument that the statement indicated that there were no motions which could be made by appellant's counsel which would be meritorious is droll. The record shows that the learned trial judge was extremely patient with, considerate of, and courteous to the parties, the witnesses and counsel.

Judgment affirmed.

I dissent. I think the learned trial judge fell into error when he placed the stipulation in evidence over the objection of the defendant, and again when the declined to give defendant's requested instruction bearing on the stipulated facts. My associates have joined him in those errors.

It is a well-recognized rule that orders or instructions given by an employer to his employees for the purpose of promoting safety in their work may generally be received in evidence against the employer, in a negligence action. The sole instification for admitting such evidence is that the orders or instructions are such as to amount to an admission of the employer with respect to his duty toward the public. This rule of evidence should be used with discrimination, if not with caution. Not every order or instruction is admissible—only those which constitute admissions of the employer as to his duties. The court must determine, before admitting the evidence, whether it amounts to such an admission. If it does not it should not go before the jury. The instructions in question here, which are referred to as a ‘standard of conduct’ adopted by the city, were that workmen in the street department, upon learning of a hole in a sidewalk one-half inch or more in depth, should repair it. It is clear that this practice did not constitute an admission that every hole with a depth of a half inch or more constituted a dangerous or defective condition, or that the city was under a duty to repair it, and yet respondent argues that it constituted such admissions. Her argument runs somewhat as follows: the city admitted that it had a duty to repair holes when they reached a depth of one-half inch, this was an admission that such holes made the sidewalk dangerous and defective, it failed to repair the one in question and thereby, according to its own admission, was guilty of negligence. Doubtless the same argument was made to the jury. It is unsound and specious, but it has at least an ostensible basis in the evidence that was improperly admitted. Its unsoundness inheres in the fact that the evidence of the practice tended to prove only that the city was endeavoring to exercise a high degree of care in the maintenance of its sidewalks by repairing minor and trivial defects. It is well settled, as a matter of law, that a depression or a protuberance of a half inch, or even an inch, in a sidewalk, is a minor defect which the city is under no duty to repair. The city's commendable policy has been seized upon as an admission that it was under a duty to make such repairs. Id do not see how the rules or orders of an employer, which require the exercise of more than ordinary care, can tend in the slightest degree to prove what he understood would be required of his employees in the exercise of ordinary care. Nor do I believe that such rules are admissible in evidence where there could be noncompliance without negligence. The only tendency of the evidence was to prove that the city had a duty greater than that imposed by law, namely, a duty to keep its sidewalks free from defects, whether dangerous or not.

If it had been established by the evidence, without substantial conflict, that the hole was three or more inches deep, admission of the stipulation, while erroneous, would not have been prejudicial. But there was ample evidence from which the jury could have found that the hole was an inch deep, at most. The city employee who repaired it testified that it was not over three-quarters of an inch deep, an inch at the deepest point. A neighbor who was present when it was repaired testified that some of the hole was a quarter of an inch, some a half inch, ‘something like that’ and none of it as deep as one inch. The jury might have believed that the hole was an inch, or even less, in depth, and a minor defect, and yet have found the city guilty of negligence in the belief that it had admitted a duty to repair such defects.

The question is one of considerable importance. The main opinion will stand as authority affecting the conduct of all municipalities and other public bodies subject to the Public Liability Law. Policies and practices for the repair of sidewalks and streets before they become dangerous, which of course should be encouraged, will be adopted by them at their peril, and will be used against them to their prejudice and disadvantage. The courts should not lay down a rule which would make cities and other public bodies fearful to exact a high degree of care of their employees, in the repair of streets and sidewalks, or in other work.

Having admitted the evidence, the court should have given the city's requested instruction to the effect that the practice followed by the city should not be taken as evidence that the defects to be repaired under that practice ‘necessarily constitute dangerous and defective conditions which would render the city liable’ etc. The charge to the jury, while a model in other respects, did not touch on the point. The jury could scarcely have been expected to know what significance the evidence had. The attorneys in the case have different notions about it. My own views differ from those of my associates and the trial judge, and a respectable minority of the courts hold that an employer's rules, orders or instructions, are not admissible in evidence on the issue of negligence.

It is not clear to me why the instruction was not given. It stated the law correctly. Surely the jury should have had some guidance, and the requested instruction was the least the city could have expected. An instruction could properly have been given that a hole in the sidewalk an inch or less in depth would not create a defective or dangerous condition, within the meaning of the other instructions. The failure to give any instruction on the subject only rendered more grave the error in the admission of the evidence.

I think the holding of the main opinion on these points is in error and that the judgment should be reversed.

VALLÉE, Justice pro tem.

WOOD, J., concurs.

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