RODKEY v. CITY OF ESCONDIDO (1936)

Plaintiff recovered judgment for injuries received during the afternoon of December 26, 1934, while riding as a guest in an automobile at the intersection of Fig and Grand avenues in the city of Escondido. Grand avenue runs east and west and Fig avenue intersects it at right angles. A dip is built across Grand avenue to permit the flow of storm waters from Fig avenue. In crossing this dip the plaintiff and two companions who were riding on the rear seat of the automobile were thrown so that their heads struck the top of the car. Plaintiff fell to the floor of the car and was severely injured.

This action was brought under the provisions of section 2 of the Public Liability Act of 1923 (St. 1923, p. 675). Under this section plaintiff must prove the existence of three circumstances in order to recover judgment against a municipality. They are: (1) That the injuries proximately resulted from a dangerous or defective condition of the street; (2) that the city council, or some officer or person having authority to remedy such dangerous or defective condition, had notice or knowledge thereof; (3) that it, or he, failed or neglected to remedy such dangerous or defective condition within a reasonable time after acquiring such notice, or must have failed to take such action as might have been reasonably necessary to protect the public against such dangerous or defective condition within a reasonable time after such knowledge or notice. Pittam v. City of Riverside, 128 Cal.App. 57, 16 P.(2d) 768. The trial court sufficiently found all facts against defendant and rendered judgment accordingly.

The findings of fact are amply supported by an abundance of competent and material evidence, so our discussion of the evidence will be brief. The dip in the pavement was constructed under authority of the officers of the defendant city several years before the accident. A portion of Grand avenue on each side of the intersection was surfaced with oil macadam a year or more prior to the accident. The inspector on this work informed the then mayor of the city of the dangerous condition of this intersection and another in the vicinity. The contractor was instructed to fill and level both dips, but he did not fill the Fig avenue dip, that intersection remaining relatively the same as before, with the exception that the oil macadam settled away from the concrete which formed the original paving of the intersection, making the dip more dangerous than before. Many cars crossed the intersection daily, and many of those traveling at twenty–five miles an hour or more were thrown by the dip. The residents of the city of Escondido traveling Grand avenue, when crossing the intersection, very generally turned onto the extreme edges of that street where the dip was less pronounced. Competent highway engineers testified that the condition of the intersection made the street dangerous to motorists. There were no signs warning of the danger to be met in the intersection.

The foregoing evidence is amply sufficient to establish the dangerous and defective condition of the street, and that the city had both actual and constructive notice of that fact. Boyce v. San Diego High School Dist., 215 Cal. 293, 10 P.(2d) 62; Rafferty v. City of Marysville, 207 Cal. 657, 280 P. 118; Dawson v. Tulare Union High School, 98 Cal.App. 138, 276 P. 424; Hook v. City of Sacramento, 118 Cal.App. 547, 5 P.(2d) 643; Bennett v. Kings County, 124 Cal.App. 147, 12 P.(2d) 47. Because of factual differences, the case of Nicholson v. City of Los Angeles (Cal.Sup.) 54 P.(2d) 725, is not authority for conclusions contrary to those we have expressed.

Defendant urges that the proximate cause of plaintiff's injuries was the negligence of the driver of the automobile in which she was riding when traveling the intersection at an unlawful rate of speed, in excess of 25 miles an hour. It is not suggested that the speed was as much as 45 miles an hour. This argument is based on the theory that, as the road was properly sign–posted, warning of a permissive speed of 25 miles an hour, and as there were thirty–eight dwellings fronting the street in a distance of six–tenths of a mile, the permissive speed limit was 25 miles an hour. It is admitted that the quarter mile of Grand avenue containing the intersection did not have the necessary number of dwellings fronting upon it to constitute it a residential district. This being true, the permissive speed was 45 miles per hour. Section 28 1/2, Cal. Vehicle Act (St.1923, p. 517, as added by St.1929, p. 510) and section 113 (St.1923, p. 553, as amended by St.1931, p. 2120), in effect in 1934. Adrian v. Guyette (Cal.App.) 58 P.(2d) 988. A speed of less than 45, but in excess of 25 miles an hour, was not of itself evidence of negligence as a matter of law on the part of the driver of the car.

Defendant complains of what it terms “extra–judicial conduct of the court.” It was stipulated that the trial judge might view the intersection and “use in evidence anything that he sees at the intersection.” The judge visited the intersection with counsel. In his oral decision he commented on his failure to observe a 25–mile sign which was posted some distance from the intersection. Defendant urges that he should not have taken this into consideration as it was not included in the stipulation. If we assume, without holding, the correctness of this contention, it can have no bearing on a decision of the case. The existence of the sign could only affect the permissive speed at the intersection. As this speed was 45 miles an hour, because of the lack of the requisite number of dwellings, the question of the sign was immaterial.

Judgment affirmed.

MARKS, Acting Presiding Justice.

I concur: JENNINGS, J. Mr. Presiding Justice BARNARD, being absent, does not participate herein.