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District Court of Appeal, First District, Division 2, California.


Civ. 10910

Decided: December 15, 1939

J.E. McCurdy, of San Mateo, for appellant. Hugh F. Mullin, Jr., and Francis N. Foley, both of San Mateo, for respondent.

The motorcycle on which the plaintiff was riding struck a hole in the road and the plaintiff was thrown to the ground. For injuries sustained in the fall he brought this action to recover damages. He named the city of San Mateo and California Water Service Company as defendants. Both defendants answered and the action was tried before the court sitting with a jury. When the taking of the evidence had been concluded the trial court granted a motion made by the city of San Mateo for a directed verdict. This defendant made a similar motion but it was denied. The jury returned a verdict in favor of the plaintiff in the sum of $8,000. The defendant made a motion for a new trial. That motion was denied and the defendant appealed from the judgment.

In presenting its appeal the defendant contends that the evidence was insufficient to support the verdict and that the trial court committed prejudicial error in giving an instruction applying the doctrine of res ipsa loquitur. Before proceeding to discuss either point it becomes necessary to summarize the facts.

El Camino Real, one of the main highways in the state, runs through San Mateo from north to south. It is crossed by Second avenue which runs from east to west. At a point about 100 feet north from the intersection of those streets, San Mateo creek crosses El Camino Real at right angles. The stream is bridged by a sunken culvert which is buried by a deep fill. On the morning of March 9, 1936, the time of the accident, a hole had sunk in the surface of the highway at a point immediately adjacent to the curb on the east side of the highway and 186 feet north of the intersection of Second avenue with the highway. The hole was about five inches deep near the curb on the eastern boundary of the highway, it was from fourteen to eighteen inches wide and extended southwesterly eight or ten feet out into the roadway gradually diminishing in depth.

The plaintiff was a mail carrier engaged in traversing the streets of San Mateo daily but was not aware of the existence of said hole. In making his rounds on the morning of March 9, he was traveling at a speed of about twenty or twenty-two miles an hour in a northerly direction and did not see the hole in time to avoid hitting it. When his motorcycle hit the hole the plaintiff was thrown and suffered the injuries complained of.

Formerly in El Camino Real, immediately south of the place of the accident, there was a steep grade over a small hill. At that time the highway was only thirty-five feet wide. In 1935 material changes were made. A concrete culvert in the form of an arch was constructed over San Mateo creek. Retaining walls were constructed from the corners of the culvert parallel with the roadway which was increased to a width of one hundred two feet from side to side. The hill was cut down and a fill was placed over the culvert. The fill was from twenty-two to twenty-seven feet deep in places. The old road was not taken out but the fill was put on top of it and the sides were filled to bring the whole to a uniform grade and width. Although the work was properly done, the road where filled has at times sunk in places and substantial fills have been required from time to time since the above-mentioned alterations were made. In the hole we are discussing a yard and one-half was used in repairing it in March of 1936 and during the following one hundred days other fills in the total sum of eleven yards were made. In March, 1938, other fills were made. The holes so filled were not adjacent. Some were on the east side, some were on the west side of the highway, some were over one hundred feet apart.

After the work was completed the roadway was one hundred two feet wide. A width of seventy-two feet was surfaced with asphaltic concrete. On the side on the east a gutter and curb were installed. East of the curb a concrete sidewalk was placed. Then to the east of the sidewalk and between it and the retaining wall along the boundary of the Mills Hospital grounds there was left a strip seven feet wide which was covered with gravel. In the side of the arched culvert there were inserted a full number of “weep-holes”. They were openings to allow a discharge into San Mateo creek of any accumulation of water in the basins formed by the culvert and the retaining walls attached at each end. The drainage of surplus waters was both north and south toward the arched culvert.

When the culvert was being placed in position the public utilities were assigned positions in which they could install their pipes and conduits. On the east end of the culvert on a strip covered with gravel, on a plane four feet below the surface, was assigned a place for the laying of the thirty-six inch water pipes of the San Francisco Water Company. Slightly above and to the east a space was assigned to the defendant to lay its twelve-inch iron water pipe. The defendant furnished new cast-iron pipe. It was twelve inches in diameter and twelve feet long. One end was bell-shaped, the small end was inserted in the bell, and the joint was caulked. After the pipe was laid the water was turned on and the pipe was left exposed for observation for three or four weeks. All of the work was done by the defendant under the supervision and direction of the officers of the state highway. There was no evidence that the defendant did not employ competent assistants, that it did not inspect at all due proper times, but on the other hand that it did inspect and examine its pipes three days before the accident complained of. A pipe of the Pacific Gas and Electric Company was already in place. The concrete retaining wall between the highway and Mills Hospital was poured over and around it. That pipe of the latter company extended through the eastern wall and will later be mentioned again. No claim is made that any one of said sets of pipes was not of good material nor that the installation was done improperly. Prior to the date of the accident the rainfall was heavy in San Mateo county. In the sixty days prior to the accident over fifteen inches of rain fell.

On Friday, March 6, 1936, water was seen percolating through the hole in which the pipe of the Pacific Gas and Electric Company pierced the eastern wall. That water ran down into San Mateo creek. Immediately thereafter examinations were made to ascertain if the water pipe was broken. Defendant's agents at once made an examination of its pipes and reached the conclusion that its pipes were not leaking. The water issuing through the hole occupied by the pipe of the Pacific Gas and Electric Company was of such quantity as might run through a one-half inch pipe. Said hole is located in said wall in a place that is forty-five feet from the leak in the pipes maintained by the defendant and several feet above the “weepholes” hereinabove mentioned.

After the accident the defendant made a further examination. It then located a leak in the bottom of one joint of its cast-iron pipe. That leak was in the form of a split seam and is spoken of as a “hair crack” two and one-half inches long. Through it flowed water to the amount of one-half cupful per minute. The soil was wet not more than three feet around the leak. The joint was taken out and a new joint was installed. The evidence does not show whether thereafter the discharge of water ceased to flow through the hole in the wall occupied by the pipe of the Pacific Gas and Electric Company. Except the excavation made by the defendant the evidence shows no other. Later the city of San Mateo filled the hole in the roadway.

As recited above the defendant contends there was no evidence to sustain the verdict of the jury. That point must be sustained. There was not a particle of evidence that the defendant's pipe was not properly installed, that there were any patent defects of any kind that defendant did not duly inspect, or of any other act of negligence. Therefore the implied finding of the jury that the defendant was negligent is wholly unsupported. In the absence of negligence it was not liable. 26 Cal.Jur. 152.

That the road sank and thereby created the hole on the surface is clearly shown. What caused it to sink was the real issue on trial. There was no direct evidence. The plaintiff contends there was an inference the road was caused to sink by water which escaped from the defendant's broken pipe into the filled ground, or by drainage water increased by the water that so escaped from defendant's pipe. The defendant contends the road was caused to sink because it was built on filled ground or because the filled ground was saturated with drainage water. These two opposing contentions rest, if on anything, on the inferences to be drawn from proved facts contained in the evidence. Code Civ.Proc., sec. 1960. The burden of proof rested on the plaintiff. When such is the fact, and the existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon whom the burden rests to establish that fact should suffer and not his adversary. A judgment cannot be based on guesses or conjectures. A finding of fact based on an inference must be on an inference drawn from evidence rather than from a mere speculation as to probability without evidence. Reese v. Smith, 9 Cal.2d 324, 328, 70 P.2d 933. When, as here, different inferences may be drawn from the proved facts, some of said inferences supporting the party on whom rests the burden of proof and some supporting his adversary, the proof of the party on whom rests the burden is insufficient. Puckhaber v. Southern Pacific Co., 132 Cal. 363, 365, 366, 64 P. 480, and cases there cited.

The point just discussed is closely allied to the next point made by the defendant. It contends the trial court, acting upon the request of the plaintiff, erroneously gave an instruction applying the doctrine of res ipsa loquitur. That instruction is as follows: “I instruct you that when a thing which causes injury is under the control and management of a defendant and the accident is such as in the ordinary course of things does not happen if those who have the management use ordinary care, it affords reasonable evidence in the absence of explanation by the defendant, that the accident arose from want of ordinary care. Therefore, if you find that defendant water company had exclusive control and management of its water pipe, and that water was permitted to escape therefrom, then I instruct you that the escaping of said water from said pipe affords evidence, in the absence of explanation, that it arose from a want of ordinary care on the part of said water company in the control and management of said pipe.” It was not applicable to the facts. The thing that caused the accident in the instant case was a hole in the road. Bearing that in mind, the first sentence of the instruction was clearly inapplicable because there was not even a claim that the road or any part of it was “under the control and management of the defendant *.” The second sentence assumes that the water escaping from defendant's pipe injured the plaintiff. As shown above there was no evidence to that effect.

The judgment is reversed.


We concur: NOURSE, P.J.; SPENCE, J.

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Docket No: Civ. 10910

Decided: December 15, 1939

Court: District Court of Appeal, First District, Division 2, California.

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