MOSLEY v. ARDEN FARMS CO (1944)

This is an appeal from a judgment in favor of plaintiff for damages for injuries suffered by him on February 16, 1942.

Highland Avenue is a public street running in a general northerly and southerly direction in National City. It has a roadway 48 feet wide bounded by a curb on the westerly side. The space set apart for sidewalk purposes is sixteen feet wide. The curb is six inches wide at the top, bounded on the westerly side by a parkway space eight feet six inches wide. This space had trees planted in it and the balance had grown up to weeds. A tree with a trunk about six inches in diameter was growing in this parkway space near the place of the accident. On the westerly side of this parkway space there was a five foot cement sidewalk. Between the westerly edge of the sidewalk and the property line was a strip of land two feet wide on which weeds were growing.

Plaintiff was employed by National City as a laborer. On the day of the accident he was operating a power driven mowing machine and was cutting the weeds which were growing on both sides of the cement sidewalk.

Defendant is a corporation engaged in the sale and delivery of milk and, up to about the middle of January, 1942, delivered milk to customers in National City. Its milk bottles were carried in wooden boxes. It had been the custom of the employees to pile these boxes, when empty, in the parkway space south of the tree we have mentioned from which point they would be picked up and returned to defendant's place of business. Defendant sold its milk route in National City about the middle of January, 1942. At that time there were about eighteen of these boxes stacked in the parkway space south of the tree. These boxes were not removed by defendant until after the accident in question here. They were stacked in the center of the parkway space and were in plain sight as no weeds were growing around them.

On February 16, 1942, plaintiff drove the power mowing machine southerly over the cement sidewalk and cut the weeds growing in the parkway space. The blade had to be lifted to avoid the tree and the piled boxes. At the southerly end of his run he turned his mowing machine around and proceeded northerly over the cement sidewalk, cutting the weeds on the westerly side. At a point opposite the pile of boxes and in the space between the westerly side of the cement walk and the property line there were two more of the boxes. They were completely hidden by high weeds and their bottoms were embedded in the soil indicating they had been there for some time and during rains. The wheel of plaintiff's mowing machine struck one or more of these boxes. He was thrown to the sidewalk and injured.

At the time of the accident there was in full force and effect in National City an ordinance which provided in part as follows: “That it shall be, and it is hereby, declared unlawful for any person * * * to obstruct any street or alley, or portion thereof, or the sidewalk space thereof within said City, by placing or permitting thereon any signs, boxes, or other thing or article which will in any way obstruct or hinder the use thereof or travel thereon, within the limits of said City; * * *.”

Defendant argues that it was error to admit this ordinance in evidence as the boxes piled in the parking space did not obstruct or hinder the use of the cemented portion which was constructed for the convenience and use of pedestrians; that the ordinance must be construed as prohibiting the obstruction of a sidewalk so as to interfere with the ordinary use for which it was intended which did not include a roadway for the travel of a power mowing machine. Rodkey v. City of Escondido, 8 Cal.2d 685, 67 P.2d 1053. We do not consider this question controlling here.

Other than the testimony of one witness, which was rejected by the trial court, there is no evidence showing how the two boxes came to be on the ground on the westerly side of the cement portion of the sidewalk. Other than the evidence of this one witness there is nothing to suggest that they were placed there by defendant or any of its employees. Plaintiff suggests that they may have been blown there by a strong wind or that they might have been taken from the pile and placed there by playful children. This is mere speculation and is not supported by anything in the record.

It is well established in this State that the burden of proving negligence on the part of a defendant is upon the plaintiff (Diamond v. Weyerhaeuser, 178 Cal. 540, 174 P. 38), who must also establish that such negligence was the proximate cause of the injuries. Hale v. Pacific Tel. & Tel. Co., 42 Cal.App. 55, 183 P. 280.

Here the injury was not caused by the boxes piled on the parkway space but the boxes in the weeds westerly from the cement sidewalk. Boxes do not move themselves a distance of about ten feet. They must have been moved by some agency either human or natural. There is no suggestion in the evidence of any natural force that could have moved them. There is no evidence showing that they were moved by human hands. We are left to guess as to how or by whom they were moved. If they had been left in the pile plaintiff would not have been injured. It should follow that plaintiff's injuries were caused, not by defendant's negligence, if it was negligent in stacking the boxes on the parkway space, but the intervening act of some unknown person or force which moved the boxes from the pile westerly into the weeds.

The facts of this case are quite similar to those of Schwartz v. California Gas, etc., Co., 163 Cal. 398, 125 P. 1044, 1046, in which the Supreme Court reversed a judgment for plaintiff for the following reasons:

“ ‘Defendants requested the court to instruct the jury as follows: “You cannot find for the plaintiff in this case, unless you believe from the evidence:

“ ‘(1). That plaintiff's horse was injured by an insulator, the property of defendants. (2). That the employes of defendants negligently placed said insulator on the premises where, it is claimed, said horse was injured and at the point where the evidence shows said horse was in fact injured.” As given by the court the second subdivision was modified to read as follows: “That the employes of defendants negligently placed or permitted said insulator to remain on the premises where, it is claimed, said horse was injured, and at a point where the evidence shows some injury might result.”

“ ‘In the language of appellants: “As proposed, this instruction limited responsibility to the placing of the insulator at the point where the horse was injured. The modification made the defendants liable if they placed it anywhere on the premises.”

“ ‘The proposed instruction was based upon the theory that an intervening, independent agency may have been the proximate cause of the injury. It seems plain that if appellants carelessly dropped the insulator upon the premises and did not remove it they would be guilty of negligence; but after it was dropped, if somebody else picked it up and moved it to this spot where the damage was done, it was the negligence of the latter that proximately caused the injury.

“ ‘It would not be a case of correlative and concurring causes, but of proximate and remote agencies independent of each other. The rule is well settled that “an injury is not actionable which would not have resulted from the act of negligence, except for the interposition of an independent cause.” (Citing cases.)’ ”

The Schwartz case has been frequently cited with approval and followed. See, Thomas v. German General, etc., Society, 168 Cal. 183, 141 P. 1186; Hartford v. All Night and Day Bank, 170 Cal. 538, 150 P. 356, L.R.A. 1916A, 1220; Stasulat v. Pacific Gas & Elec. Co., 8 Cal.2d 631, 67 P.2d 678; Polloni v. Ryland, 28 Cal.App. 51, 151 P. 296; Hale v. Pacific Tel. & Tel. Co., supra; Solomon v. Red River Lumber Co., 56 Cal.App. 742, 206 P. 498; McCamish v. Groff, 83 Cal.App. 776, 257 P. 79; Northrup v. Pacific Elec. R. Co., 8 Cal.App.2d 189, 47 P.2d 365.

Plaintiff points to the evidence of Mrs. Frances Galway to the effect that on September 17, 1941, she was driving past the place of the accident and saw an Arden Farms milk truck standing near the pile of boxes; that a man in the uniform used by employees of defendant threw a box over the pile of boxes and onto the strip on the westerly side of the cement sidewalk. Had the trial court accepted this evidence as true it might have been argued that defendant was responsible for placing the box where it caused the accident.

The trial court found that the ordinance already referred to was in full force and effect; that defendant piled its boxes in the parkway space between the curb and the cement sidewalk; that this pile obstructed the sidewalk and violated the ordinance and other provisions of law; that it constituted a nuisance; that piling the boxes on the parkway space was negligence which was the proximate cause of plaintiff's injuries; that “it is true that some considerable time prior to the injuries hereinafter referred to, two of the defendant's crates or boxes became displaced, and hidden in, the aforesaid growth of weeds in the space between the cement walk and the property line and across the five foot pavement from where the pile of the defendant's crates was kept and stacked. It is not in evidence that any agent of defendant moved said boxes.”

Thus it appears that the trial court did not place any reliance on the testimony of Mrs. Galway but rejected it. That this is the construction of the findings intended by the trial judge is evidenced in a written opinion filed by him (which we may refer to in order to discover the process of reasoning used by him) wherein it is said: “A considerable time prior to the accident, two of these boxes had escaped from the pile and became hidden in the growth in the space between the cement walk and the property line over the five foot pavement from where the pile was stacked. The immediate means by which this occurred, whether human or natural, is not evidenced.”

Assuming that piling the boxes on the parkway space was contrary to law and negligence, plaintiff has failed to prove that negligence a proximate cause of his injuries. There is a reasonable inference that the boxes were moved by some unknown agency. If the boxes had not been moved, plaintiff would not have been injured. Thus some intervening act of negligence, probably by some unknown person, occurred which was the proximate cause of the injury and not the negligence of the defendant.

Plaintiff argues, if we understand him correctly, that as the evidence shows that defendant created a nuisance in a public street in violation of the ordinance and state law, his right to recover was complete without further proof on his part. This argument is answered in Thomas v. German General, etc., Co., supra [168 Cal. 183, 141 P. 1188], as follows:

“And where the negligence is predicated upon the failure to perform a duty commanded by statute or ordinance, the same rule applies. Says Thompson: ‘In all these cases it must appear that the violation of the ordinance was the proximate cause of the injuries received.’ 6 Thompson on Negligence, § 7868. And says Cyc. (29 Cyc. 489): ‘The same rules are to be applied in determining the question whether an act is the proximate cause, whether such act is in violation of a statute or of some duty under general principles of law. In determining whether particular acts of negligence can be considered the proximate cause of injury, no distinction can properly be made between acts which constitute negligence because they are in conflict with statutory laws, and acts which are condemned as negligence under the general principles of law governing the conduct of men in relation to each other.’ ”

The judgment is reversed.

MARKS, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.