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

Angelita AGUIRRE, by and through her guardian ad litem, Ling Aguirre, Plaintiffs and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.*

Civ. 21326.

Decided: February 09, 1956

Richard A. Ibanez, Los Angeles, for appellant. Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., William E. Still, Deputy City Atty., Los Angeles, for respondent.

The action is for damage for personal injuries to appellant resulting from alleged negligence on the part of respondent city. The case was tried before a jury and at the conclusion of plaintiff's case a motion for a non-suit by defendant was granted. The appeal is from the judgment that followed.

The facts as recited in appellant's brief are as follows:

‘On 7 August 1953 at approximately 8:00 o'clock P.M. Angelita was injured by escaping electricity from the City's streetlighting system. At the time, Angelita was skating on the public sidewalk a short distance from her home.

‘On the sidewalk where Angelita was skating there was a cement receptacle, rectangular in form, with top dimensions of approximately 12 inches by 24 inches. This receptacle, called a pull-up box, recessed into, and part of the sidewalk, was made of cement just like the sidewalk. The top of the pull-up box had a cement lid with two ‘J-bolts' also recessed into the lid and located on the longitudinal ends of the lid.

‘This pull-up box was part of the sidewalk intended for use by the public to walk over just like the rest of the sidewalk.

‘The pull-up box was situated approximately three feet from the curb inward towards the property line.

‘Between the pull-up box and the curb and rising from the sidewalk was a metal lamp standard.

‘This pull-up box as well as the light-standard were part of the City's street-lighting system.

‘Angelita approached the pull-up box and light-standard with metal skates on both shoes. As the wheels of one of her skates rolled over the lid of the pull-up box it came into contact with the metal J-bolt. At the same time Angelita took hold of the metal light-standard with her bare hand and arm. That instant electricity passed through Angelita's body from the J-bolt to the light-standard causing her to sustain the injuries which are the ingredients of this lawsuit.’

‘The motion made by the City was based upon two grounds, namely, that there was a failure of proof, and, that the complaint failed to state a cause of action. These two contentions made at the trial by the City will now be considered seriatim.’

It is contended on appeal that, ‘there was sufficient evidence to make out a prima facie case and the trial court erred in finding otherwise by nonsuiting the plaintiff appellant’, and that ‘the complaint does state a cause of action against the City under the Public Liability Act’.

As recited in appellant's brief,

‘Briefly stated the requirement of proof under the Public Liability Act are (a) the existence of a defective condition of the street within the City's jurisdiction so as to constitute a direct menace to travel by persons using it, and an injury proximately caused thereby; (b) knowledge of this condition by the City before the injury and, (c) reasonable time after notice to enable the City to remedy a condition. (BAJI 219–C and BAJI Supp. 219–C).

‘That there was a defective condition by virtue of the existing ‘energized’ J-bolt which injured Angelita cannot be gainsaid. The more difficult question is what notice prior to the accident of this defective condition did the City have?

‘The law does not require actual notice. If the evidence indicates that there was a long continuous existence of the dangerous or defective condition, this fact will support an inference of notice called constructive notice. (BAJI 219G). Because electricity is a dangerous instrumentality with an inherent risk to do injury, if it escapes, the City, in the exercise of ordinary care, was required to make reasonable inspections. (Polk v. City of Los Angeles, 26 Cal.2d 519, 159 P.2d 931; Van Dorn v. City & County of San Francisco, 103 Cal.App.2d 714, 230 P.2d 393; Laurenz v. Vranizan, 25 Cal.2d 806, 155 P.2d 633; Warren v. City of Los Angeles, 91 Cal.App.2d 678, 205 P.2d 719.)

‘Here the jury was deprived of the opportunity of inferring from the circumstances whether there was constructive notice to the City. Also whether in the exercise of ordinary care the City sould have inspected the pull-up boxes and if so, whether such inspection would have revealed the dangerous condition.’

It is also contended, ‘that the doctrine of res ipsa loquitur is equally applicable to an action of this kind against the City as it is against a private defendant’.

It is also argued that, ‘The rule is well settled that where a defendant proceeds to trial upon the merits without making objections by way of demurrer to the manner of pleading such formal defects cannot be raised for the first time on appeal. Fleischmann v. Lotito, 6 Cal.2d 365, 57 P.2d 922.

‘Objections to the pleadings will be deemed to have been waived, where no objection was made by demurrer or otherwise to the sufficiency of any of the pleadings, and the cause was tried on the assumption that they stated a cause of action. Simpson v. Bergmann, 125 Cal.App. 1, 13 P.2d 531.’

Respondent, on the other hand, points out that, ‘The doctrine of res ipsa loquitur does not take the place of, or supply the proof of any of the elements required in the Public Liability Act. The doctrine may apply only after there has been proof of at least constructive notice and it is essential where this doctrine is sought to be used that all requirements conditioning the City's liability be supplied. Van Dorn v. San Francisco, 103 Cal.App.2d 714, 716 [230 P.2d 393]; Bodholdt v. Garrett, 122 Cal.App. 566, 570 [10 P.2d 533].’

It is also pointed out by respondent that, ‘The pull boxes are not periodically inspected and are opened only for ‘trouble’ calls; Mr. Greenwood (Assistant Superintendent of Electric Trouble, Department of Water and Power) expressed the opinion that there is no reason to open them otherwise. Although records are kept by Department of Water and Power trouble crews of work done in the pull boxes on trouble calls, no such records were demanded or offered for proof of inspection of this pull box. No routine inspection of the pull boxes is carried on by the Bureau of Street Lighting, and none is necessary.

‘No one has received a shock from lights since 1926, when the Bureau of Street Lighting was formed, except men working directly with the wires. A J-bolt has never been known to be energized before this accident.

‘The accident could only happen when the lights were on, with a contact made on the electric cable and then touching the lamp post. Electricity tends to follow the path of least resistance, generally along its principal conductor—it is only a possibility that the electricity would jump to another conductor where there is a break in the conductor's insulation. The presence of an insulating material, e. g., neolite sole of a shoe, would also limit the possibility of receiving a shock. The addition of roller skates would increase the possibility of shock where the other necessary factors are combined. Under Section 56.15 of the Los Angeles Municipal Code it is illegal to use roller skates on a sidewalk.’ The foregoing as recited by respondent is supported by the reporter's transcript.

Respondent concludes with the observation that, ‘The record is absolutely devoid of any evidence that the circumstances of this accident are the natural and probable consequences of this installation and should have been anticipated from past experience within the reasonable expectation of the authorities planning, constructing and maintaining such system. This accident was a pure freak.’

It does not appear, from a review of the record, that the respondent had notice or knowledge, actual or constructive, of the dangerous condition either as a matter of fact or a matter of law.

As noted by respondent, ‘Street lighting is a governmental function of a municipality. Logan v. Glendale, 102 Cal.App.2d 861, 229 P.2d 128.

‘Every plaintiff seeking damages from a municipality acting in a governmental capacity must bring himself within the provisions of the public liability statutes of this State. It is only by expressed statutory permission that any governmental agency may be sued. So, in this case, we must look to the provisions of the Public Liability Act of 1923, Govt.Code, §§ 53050–53056, and judge the sufficiency of facts stated in plaintiff's complaint by the requirements of that Act. This statute is in derogation of the common law rule of no liability for malperformance of a governmental function and is to be strictly construed. Loewen v. City of Burbank, 124 Cal.App.2d 551, 553, 269 P.2d 121; Hoel v. City of Los Angeles, 136 Cal.App.2d 295, 288 P.2d 989.

‘Under the 1923 Public Liability Act a complaint must allege the essential elements of that act. It must allege that there was a dangerous condition of public property. It must allege that the City had notice or knowledge, actual or constructive, of that dangerous condition, and it must allege that the City failed for a reasonable time after receiving notice of a dangerous condition to remedy the same. Without one or all of these allegations the complaint states no cause of action. Benton v. City of Santa Monica, 106 Cal.App. 399, 289 P. 203.’

From a review of the record, in the light of the Public Liability Act of 1923, it appears that the trial court's ruling on defendant's motion for a nonsuit was correct.

The order is affirmed.

DORAN, Justice.

WHITE, P. J., and FOURT, J., concur.