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WISE v. CITY OF LOS ANGELES.
Defendant's petition for a rehearing places great reliance upon the decision in Watson v. City of Alameda, 219 Cal. 331, 26 P.(2d) 286, and it is claimed the rule therein announced is contrary to the law as stated in the last paragraph of our opinion.
It is to be noted that the judgment in the instant case would be affirmed for the other reasons stated in the decision, even though the last paragraph were entirely eliminated from the opinion. The law as we have stated it is not contrary to the decision in Watson v. City of Alameda, supra; the cases being clearly distinguishable on several grounds.
First. In Watson v. City of Alameda, supra, an employee of defendant painted a line in the street. This act was not inherently wrong or dangerous, while the digging of a hole in a public highway, as in the instant case, is obviously inherently dangerous. Mr. Justice Langdon recognizes this distinction in the case of Watson v. City of Alameda, 219 Cal. 331, at page 333, 26 P. (2d) 286, 287, wherein he says: “Reference is made by plaintiff to the special doctrine that notice is unnecessary where the planned improvement is inherently wrong and dangerous.” Citing among other cases, Kaufman v. Tomich, 208 Cal. 19, 280 P. 130.
In Kaufman v. Tomich, 208 Cal. 19, at page 26, 280 P. 130, 133, a case wherein the municipality directed an independent contractor to dig a ditch which the court found was inherently dangerous, Mr. Chief Justice Waste in holding defendant municipality liable points out: “The court having found that the location of the ditch endangered plaintiff's property, it was the duty of the city at all events to prevent the injury.”
Second. There is a clear distinction between the instant case and Watson v. City of Alameda, in that Act 5619 (Stats. 1923, p. 675; vol. 2, Deering's Gen. Laws, 1931, p. 3052) reads in part as follows: “Municipalities * * * shall be liable for injuries to persons * * * resulting from the dangerous or defective condition of public streets, highways, * * * in all cases where the governing or managing board of such * * * municipality, * * * or other board, officer or person having authority to remedy such condition, had knowledge or notice of the defective or dangerous condition of any such street, highway.” (Italics ours.) Section 2.
All the statute requires is that the person having authority to remedy such condition shall have knowledge or notice of the defective or dangerous condition.
In Watson v. City of Alameda, 219 Cal. 331, at page 332, 26 P.(2d) 286, 287, the work was done by an employee of the defendant city, and Mr. Justice Langdon says: “Since the accident happened shortly after the work was done, there was, of course, no opportunity for the chief of police, superintendent of streets, or any other responsible officer of defendant to obtain knowledge or notice of any dangerous condition; and, indeed, the condition itself could last but a few hours, during which the paint would dry.” (Italics ours.)
In the instant case the testimony showed that the surveyor who dug the hole was an officer or person having authority to remedy such condition. Thus there was notice and knowledge of the dangerous condition to the person having authority to remedy such condition, as required by Act 5619, supra.
Petition for rehearing is denied.
PER CURIAM.
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Docket No: Civ. 10454.
Decided: November 04, 1935
Court: District Court of Appeal, Second District, Division 2, California.
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