FACKRELL v. CITY OF SAN DIEGO (1944)

Defendant and appellant The City of San Diego appeals from a judgment rendered by the trial court sitting without a jury, in the sum of $3,500 in favor of plaintiff and respondent Ida Fackrell. The action is based upon the Public Liability Act of 1923 (Stats.1923, p. 675, Deering's Gen.Laws 1937, Act 5619), for injuries claimed to have been caused to plaintiff as a result of a defective street and sidewalk improvement.

On this appeal, no complaint is made as to the amount of damages awarded. No question of the contributory negligence of plaintiff is here presented. The sole question turns on the liability of the city.

West Palm Street in the City of San Diego is a short street sloping from the east to the west, connecting part of the uptown areas of San Diego with direct routes to the Consolidated Aircraft factory. For many years prior to the winter of 1940–1941, this street had been closed to traffic, both for the motorist and pedestrian. The soil was in its virgin state. Late in November, 1940, the city undertook to grade and oil this street in order to facilitate the movement of workers in the aircraft industry to and from their work at the factory. The grading and oiling was finished on January 8, 1941. The work was not done on contract but directly by the city. Milton Rader, a witness for the city, was in charge of this improvement. He was street foreman and had been so engaged for several years prior to the trial. He worked directly under the City Superintendent of Streets in charge of new construction and general maintenance of all unimproved streets in the city. It was also his duty to inspect unimproved streets. The result of the grading done on West Palm Street was that at the intersection with Kettner Boulevard no more than a few inches were cut from the land in its natural state; but at the railroad crossing at the intersection of West Palm and California Streets the cut deepened to a maximum of 12 to 13 feet. At California Street the lot level was left above the street about ten feet on the south side of West Palm. On the north side the cut was 12 to 13 feet. A sidewalk of virgin soil was left above the street level on either side, 10 feet wide and slanting from the bank near the property line toward the street, which sidewalk was bordered with a curb graded out of the soil.

There was a conflict in the testimony as to the character and height of the curb. Rader and the witnesses for the plaintiff were in agreement that there were no concrete curbs, or curbs of any substance except the soil left by the grading. Rader contended that the curbs did not exceed 8 or 10 inches in height from the level of the street and that they were beveled from the street back to the sidewalk for the purpose of holding the oil which was afterwards put on the street. Witnesses for the plaintiff, on the other hand, testified that the curbs were 12 to 18 inches high and that there was a perpendicular drop from the sidewalk to the street level at the point where the plaintiff fell.

After the street was graded oil was applied thereto. This was a light penetrating oil sprayed on from a truck with a power pump on it under pressure at a temperature of 450 degrees. The oil was purposely sprayed on the curb to provide a seal against erosion and to prevent dust from blowing into the street. Rader insisted that it was not intended that the oil sprayed on the curb should result in producing a sidewalk with an oiled surface.

There was a conflict in the evidence as to the width of the oiled surface produced by the wind spreading oil upon the dirt sidewalk near the curb or gutter. Rader testified that the overlap on the curbing was limited to “four to six, sometimes eight inches”. The evidence produced by plaintiff indicated that the oil strip on the sidewalk bordering the curb was approximately 18 inches wide at the point of the accident.

After the conclusion of the work, on January 8, 1941, Rader was in charge of inspection of the street. He disclaimed responsibility for inspection of the sidewalk. The sidewalk was considered by his department to be wholly unimproved, and that no repairs would be made on it unless someone in the neighborhood called attention to a condition which was unsafe and dangerous. However, he inspected the oiled street up to the first part of February, 1941. He then testified that it is usual for streets treated as West Palm Street had been treated to show pot holes after traffic “hits the street”; that upon his last inspection in February, 1941, the usual number of pot holes appeared in the street; that he did not notice any large holes at that time, and that it was late in January and in March, 1941, when the rains came.

On March 21, 1941, at about 1 p. m., plaintiff was walking westerly along a strip about 12 inches from the curb, on the north dirt sidewalk bordering on West Palm Street and toward her home when the part of the sidewalk covered with the overflowed or overlapping oiled surfacing gave way under her, apparently from erosion, and she fell into a hole in the street which was about 18 inches from the curb and in the street opposite to the place where the oiled surface of the dirt sidewalk near the curb gave way. The hole was described by her as having the appearance of a “mud pie”, formed in the crust of the street; that it was small and about 5 inches across, but she did not notice any depth to it. The fall caused a fracture of her right leg at the ankle.

Plaintiff testified that after she fell the hole appeared to be larger than before; that “it seemed like everything gave way and it all just crumbled in”; that when she finished falling, her body was in the bottom of a hole about 3 feet below the level of the dirt sidewalk; that there had been no appreciable change in the condition of the sidewalk or around “this point in the street” from the time it was put in until the month of March, 1941; that the hole in the street where she slipped had only been there, to her knowledge, “about a couple of days before the accident”; and that “hundreds of aircraft workers” would go up and down this sidewalk each day.

Upon the issue of the dangerous character of the street and upon the issue of notice to the city, the plaintiff produced a witness, Margaret Crawford, who testified that in January, 1941, she rented a room from plaintiff at 1330 West Palm Street; that at that time West Palm Street was “very bad”; that there were a few small holes all along the side where the curbs were supposed to be; that the sidewalk was in a very bad condition; that “there was supposed to be oil and gravel, but most of it was done way with; I guess, worn away”. She was then shown a picture of West Palm Street taken after the accident and a hole in the street was pointed out by her. She was asked whether there “was such a hole there during the time she lived in plaintiff's house” and she replied: “Yes, it was very small, around the first of January, but, then, after the rains, why, then it became larger”. (The evidence conclusively shows that the street and sidewalk were not completely graded until January 8, 1941.) She then testified that she thought it was about a foot and a half drop from the level of the sidewalk to the street, but on cross–examination she testified that the distance could have been 9, 10, 12, or 18 inches,––“I was just guessing”; that the hole “dropped” still farther; that “before the rains it was about 3 or 4 inches down but after the rains”––“it was another foot”. She then testified that about one week before plaintiff fell she had an accident on the same dirt sidewalk “about 30 or 40 feet down from the corner of Kettner * * * about that same location” where plaintiff had her accident. She testified that she “couldn't swear it was at that same spot, but it was right in that neighborhood”; that she “slid down right into the hole where she went”; that the “sidewalk crumpled”; that “there was just a little hole” and “my ankle went in it”; that she did not report her injury or the condition of the sidewalk to the city officials; that the rain came in March and washed out these holes.

Plaintiff testified that the place pointed out by Mrs. Crawford as the place where she fell was not the place where plaintiff fell.

Defendant's superintendent testified that the purpose of the oil was to seal the street from “ordinary erosion”; that the oil from the “spray bar will spray or spread––from 4 to 8 inches” over onto the dirt sidewalk, depending on the amount of wind blowing, type of curbing, etc.; that the oil “went up there accidentally”; that no attempt was made to spray or oil the sidewalks in any way; that during February, 1941, he was “over the street several times”, watching it; that he saw nothing “wrong with the street at any place”, nothing more than happens to any oiled street––a few “little pot holes shows up”; that he noticed no large holes at the curb or otherwise; that he didn't recall whether he inspected it in March; that “we don't expect any work to last forever, and when we put a dirt sidewalk in we more or less always expect to have to do work on it”; that there is bound to be more erosion on a hill than there is on a level piece of ground; that “there is bound to be, on new work, erosion. On our policy that we have tried to follow, the only thing that we ever repair on unimproved sidewalks is something that is reported to us as dangerous. We don't try to maintain or keep up unimproved sidewalks, only when there is a bad wash or something that somebody has reported to us as dangerous”.

This is about the only evidence of possible constructive or actual notice to the city of the defective condition of the street and sidewalk.

Upon this evidence the trial court found that the defendant city had control of the street and sidewalk involved; that it “negligently maintained” them and that they were “in a dangerous and defective condition”; that defendant on January 8, 1941, improved the street and sidewalk by grading the sidewalk and street and oiling the same and that by reason of said work the sidewalk and street were left in a condition which was inherently dangerous; that said inherently dangerous condition was known to the defendant and was not known to the plaintiff; that a hole in the street adjacent to the sidewalk had existed for sometime prior to March 21, 1941; that thereby the street and sidewalk were made dangerous and defective; that defendant had notice and knowledge of the defective and dangerous condition of said street and sidewalk; that a reasonable time had elapsed after the defendant and its said officers acquired knowledge and received notice of the said defective and dangerous condition during which time the defendant could have remedied said dangerous and defective condition; that the defendant and its officers who had authority to remedy said defective and dangerous condition failed and neglected for a reasonable time after acquiring said knowledge and receiving said notice to remedy said defective and dangerous condition; that as a direct and proximate result of said dangerous and defective condition of said sidewalk and of the negligence of defendant, plaintiff fell upon said sidewalk and street and into and upon said hole and was thereby injured. Judgment was rendered accordingly.

Defendant appealed and argues that the evidence is insufficient to support the findings and judgment in that (1) the defective and dangerous condition complained of was, according to the evidence, a latent defect of which the defendant had no knowledge or notice, and could not, by a reasonable inspection, have acquired knowledge or notice of said defect; (2) that plaintiff failed to show that the sidewalk was in a dangerous and defective condition, and failed to show that the city had notice either actual or constructive of any dangerous or defective condition for any such length of time as would reasonably enable it to fix or repair the same.

We will first consider the evidence supporting the finding that the manner of grading and oiling of the street and the partial oiling of the sidewalk was “inherently dangerous”. There was nothing unusual in the manner in which the street and sidewalk were graded. Placing the penetrating oil on the dirt street was according to adopted standards and in itself could not be considered dangerous. Placing the penetrating oil in and upon the street gutter and curb to prevent erosion of the dirt street and dirt sidewalk could not be said to be inherently dangerous. The only argument that plaintiff offers in this respect is that the city negligently applied penetrating oil and allowed it to be “blown onto the dirt portion of the sidewalk” thereby creating a “crust” which might thereafter cave in if rains came and caused erosion of the dirt from under it. It is apparent from the undisputed testimony that it was good practice to apply such an oil to the curb or embankment of the dirt sidewalk to prevent erosion. Plaintiff produced no evidence to the contrary. The oil surfacing had to terminate at some appropriate point on the dirt sidewalk. It was not intended that any part of the sprayed area of the dirt sidewalk was to be used or considered by pedestrians as a part or portion of any paved sidewalk. It was clearly intended as a binder to prevent erosion. We see nothing in the original improvment, i. e., the construction of the street and sidewalk or in the nature of the application of the penetrating oil that could be considered inherently dangerous. The claimed defective condition subsquently arose from erosion due to the action of the elements. The finding of the court in this respect is therefore not supported by the evidence.

In City of Phoenix v. Clem, 28 Ariz. 315, 237 P. 168, 172, where a trench in a public street had been back–filled in the usual way, so as to be safe for use by the public, and the city had no knowledge of a hole therein, due to rains causing settling, and the hole had not existed long enough to give the city constructive notice thereof, it was held that the city was not liable for personal injuries caused when a taxicab struck the hole and injured an occupant. The court there discusses many of the cases from other states and quotes the general rule: “Generally speaking, when a particular kind or class of work is done in the usual and customary way, its conformity to the rule may be granted. When a city improvement is not defective when made, but later becomes so, the rule is that the city must have actual notice of a defect, or the defect must have existed a sufficient length of time to imply notice before it is guilty of actionable negligence. True, the city in the progress of making an improvement must take steps to guard the public against the dangers incident thereto. It is not entitled to notice of a dangerous condition that it has created or caused to be created during the course of the improvement, but, where the improvement is finished or completed to the extent of being safe for use by the public, as in this case, we think to hold the city not entitled to notice but liable at all events is not the law.” See also, National Laundry Co. v. City of Newton, 300 Mass. 126, 14 N.E.2d 108; Frisk v. City of Des Moines, 196 Iowa 606, 193 N.W. 570; Ward v. Salt Lake City, 46 Utah 616, 151 P. 905.

The next question that arises is whether the evidence supports the finding that the city “negligently maintained the street and sidewalk in a dangerous and defective condition” and whether the city had constructive notice of such condition.

In Cook v. Superior Court, 12 Cal.App.2d 608, 55 P.2d 1227, cited in Whiting v. City of National City, 9 Cal.2d 163, at page 165, 69 P.2d 990, at page 991, it was stated that the constructive notice necessary to fasten liability on the city under the statute and the authorities must be constructive notice not only of the condition of the sidewalk, but also of the dangerous character of such condition. The crust formed over the portion of the dirt sidewalk here involved gave no patent appearance, from any approach to it, of being dangerous to pedestrians who might walk over and upon any portion of the sidewalk. The defective character or condition, if any, was latent and not conspicuous. Plaintiff herself, who had walked over and upon this particular dirt sidewalk almost daily for several weeks immediately prior to the accident, testified that she never noticed any hole in the dirt sidewalk or any such defect as here indicated. She only noticed a “little hole about a foot and a half out in the street”, at a place where it would not be anticipated that she would be walking. There was nothing apparent about the character of that hole in the street, where pedestrians were not expected to be walking, that would in any manner give notice to a pedestrian walking on the dirt sidewalk, that the so–called crust formed thereon and in the street had been undermined by erosion. In other words, the so–called defective condition of the dirt sidewalk was not of such a character as to be conspicuous to the plaintiff or the general public using it. It was a latent defect which was unnoticed by and unknown to the city authorities as well. The fact that a pot hole or mud hole may have been present, at some given point in the street, did not necessarily give notice to the city of the dangerous character of the latent defect in the dirt sidewalk. Plaintiff herself saw the hole in the street but did not conclude from that fact that the sidewalk had been undermined. The street foreman made several examinations of various pot holes in the street during the months of January and February, and he discovered no evidence of erosion or undermining of the dirt sidewalk. The elements of knowledge or notice are logically essential to show culpability in failure to remedy the condition of a defective street or sidewalk, and proof of one or the other is necessary to recover. Watson v. City of Alameda, 219 Cal. 331, 26 P.2d 286. The evidence does not disclose any actual notice to the city of such defective condition. Plaintiff therefore must rely upon constructive notice, if any, to support the court's finding on that issue.

It has been well established in this state that, under the conditions here prevailing, liability may be imposed upon a city only by showing (1) dangerous and defective condition; (2) knowledge or notice of the defective condition; (3) failure to remedy it upon knowledge or notice thereof. Nicholson v. City of Los Angeles, 5 Cal.2d 361, 363, 54 P.2d 725. It is not enough to show a dangerous condition of the sidewalk. Little consideration can be given to the testimony of plaintiff's witness Mrs. Crawford. It was apparent that the condition she described was at a place other than that described by plaintiff. She observed no defective condition of the dirt sidewalk either. Her testimony that there was a small hole in the street “around the first of January”, is conclusively established as being unworthy of credence because the work was not completed until January 8, 1941. However, her testimony in relation to what she said she observed is subject to the same criticism as that of plaintiff in respect to establishing any constructive notice to the city of a defective condition of the dirt sidewalk.

From the record before us it plainly appears that there was no element of conspicuousness or notoriety showing any danger apparent to a person exercising ordinary care in using the dirt sidewalk on the occasion here described which could possibly give to the city authorities constructive notice of any dangerous condition of the sidewalk or of the dangerous character of such condition.

It has been well established in this state that a city is not an insurer of its public ways and is not bound to keep them so as to preclude a possibility of injury or accident therefrom. Whiting v. City of National City, supra.

If plaintiff's argument that defendant city's failure to make adequate inspection of the unimproved streets and sidewalks in that city with its many miles of unimproved streets and dirt sidewalks, constituted negligence on its part, and that the existence of any defective condition in such streets with a resultant latent defect in the adjacent dirt sidewalks, for a period of a few days or a few weeks, constitutes constructive notice to the city of such dangerous condition of the sidewalk, then cities and counties must hereafter proceed at their peril and such a construction of the statute would prevent public agencies from building and constructing unimproved dirt streets and dirt sidewalks.

The rule as to the duty to inspect has been applied in Nicholson v. City of Los Angeles, supra, 5 Cal.2d at page 367, 54 P.2d at page 728, where it is said (quoting from Davanza v. City of Bridgeport, 118 Conn. 23, 170 A. 484): “ ‘ “in order to charge a municipality with implied or presumptive notice of a defect, it must be shown that, had it exercised a reasonable supervision over its streets and sidewalks, it would have discovered the condition a sufficient time before the accident to have had a reasonable opportunity to guard against injury from it. That test is * * * would it have been discovered had the municipality exercised reasonable supervision over its streets * * * in view of the whole problem with which it was confronted.” * * * This, in common with the other elements of municipal liability for defective streets and sidewalks, contemplates consideration of all the existing circumstances, including, not only the cause and nature of the defect and the length of time it had existed, but also the location, extent, and character of the use of the walk in question, the magnitude of the problem of inspection, and remedy presented by the conditions, and the resources in men and money available to cope with the problem.’ ”

It is also said, 5 Cal.2d at page 367, 54 P.2d at page 728: “The plaintiff herself testified, and relies upon this testimony to show an absence of contributory negligence, that from the direction from which she approached the sidewalk appeared to be perfectly level. This testimony also tends to show that the defect was not conspicuous, and might also go far toward establishing that it might have been overlooked in a reasonable inspection of the city streets.”

In Whiting v. City of National City, supra, 9 Cal.2d at page 165, 69 P.2d at page 991, it is said: “It is a matter of common knowledge that it is impossible to maintain a sidewalk in a perfect condition. Minor defects are bound to exist. A municipality cannot be expected to maintain the surface of its sidewalks free from all inequalities and from every possible obstruction to travel. Minor defects due to continued use, or action of the elements, or other cause, will not necessarily make the city liable for injuries caused thereby. What constitutes a minor defect is not always a mere question of fact. If the rule were otherwise, the city could be held liable upon a showing of a trivial defect.” (Italics ours.)

The holding in the Nicholson case that the continued existence of a minor defect is of itself insufficient to impose liability on the city for injuries resulting therefrom is recognized as the law in this state. In view of the nature and character of the claimed latent defect in the dirt sidewalk, the cases cited by plaintiff are factually distinguishable. Many of those cases are adequately distinguished in Watson v. City of Alameda, supra; Wise v. City of Los Angeles, 9 Cal.App.2d 364, 49 P.2d 1122, 50 P.2d 1079; and Nicholson v. City of Los Angeles, supra. We conclude that the constructive notice found by the court is insufficient to support the judgment. Dineen v. City and County of San Francisco, 38 Cal.App.2d 486, 101 P.2d 736; Silva v. City of Somerville, 253 Mass. 545, 149 N.E. 410; Taylor v. Town of Sterling, 250 Mass. 123, 145 N.E. 40; Stone v. City of Boston, 280 Mass. 31, 181 N.E. 746; Malone v. Union Pav. Co., 306 Pa. 111, 159 A. 21; Reinhard v. Lawrence Warehouse Co., 41 Cal.App.2d 741, 107 P.2d 501; Hembling v. City of Grand Rapids, 99 Mich. 292, 58 N.W. 310; Burns v. City of Bradford, 137 Pa. 361, 20 A. 997, 11 L.R.A. 726.

Judgment reversed.

GRIFFIN, Justice.

BARNARD, P. J., and MARKS, J., concur.