EASTLICK v. CITY OF LOS ANGELES (1946)

Defendant City of Los Angeles appeals from a judgment entered upon a verdict in favor of plaintiff in an action for damages for personal injuries sustained when plaintiff tripped and fell on the sidewalk of Cannery Street on Terminal Island, in the Harbor District.

The condition of the sidewalk, which was alleged to have been a dangerous one, and which caused plaintiff to fall, consisted of a broken section of cement in which a part of the pavement extended several inches above the adjoining surface. Cannery Street extends east and west and is 100 feet wide between property lines. It is intersected by Tuna Street, which extends north and south and is some 40 feet wide.

Plaintiff was employed in the Fishermen's Cafe on the east side of Tuna Street about a half block south of Cannery Street. At about 7:30 p. m., October 27, 1943, she left her place of employment, walked northerly on the east side of Tuna Street, crossed the intersection of Cannery Street to the northwest corner and proceeded westerly on the sidewalk, some 3 to 5 feet wide, along the north side of Cannery Street. It was dark at the time, and the spot where plaintiff fell was somewhat shaded by a fence that was in course of construction along the north curb line of Cannery Street. Plaintiff filed her verified claim with the City of Los Angeles. It was rejected and the present suit was instituted.

Appellant advances two principal arguments in contending for a reversal of the judgment. It is argued first that the written demand filed by plaintiff was defective and a nullity because it failed to separately state and itemize the several elements of damage which would be recoverable upon establishment of the city's liability, and in support of this argument it relies upon certain provisions of the city charter. The demand as filed was duly verified; it stated plaintiff's name and address, the date and place of the accident, and it itemized sums paid on account of doctors' and nurses' bills and charges for rent of a splint, in the total amount of $35. These payments were stated to have been made October 30, 1943; the claim was filed November 16, 1943. In answer to the question, ‘How did damage or injury occur?’ the claim stated, ‘walking to Ferry Bldg. from work (at Fishermen's Cafe), tripped on broken place in sidewalk and fell, fracturing leg at knee joint.’ In answer to the question, ‘What damages or injuries do you claim resulted? Give full extent of injuries or damage claimed,’ the claim stated, ‘fractured leg at knew joint with the possibility of a stiff knee.’ In answer to the question, ‘What sum do you claim on account of each item of injury or damage?’ the claim stated, ‘wages lost, Dr. fees, X-ray pictures, rent for splint and nurses wages.’

The essentials of the several sections of the city charter which are relied upon by defendant are summarized in section 368, which reads: ‘No demand can be approved by any board, officer or employee, or be audited, unless it specify each several item, with the date and amount thereof.’ Section 376 provides: ‘No suit shall be brought on any claim for money or damages against the City of Los Angeles, or any officer or board of the city, until a demand for the same has been presented, as herein provided, and rejected in whole or in part.’ It is argued that a demand is not presented, within the meaning of section 376 of the charter, unless it specifies each separate item of damage, with the date and amount thereof.

Act 5149, Deering's General Laws, requires the filing of demands with cities, counties, etc., for claimed damages for injuries to person or property resulting from alleged negligence of such cities, counties, etc., and such demands are required to state ‘the name and address of the claimant, the date and place of the accident and the extent of the injuries or damages received.’ Plaintiff contends that the requirement of the charter that claims be itemized is contrary to the general law and that the latter must prevail. Defendant contends that the sections of the charter do not conflict with the general law, but merely supplement it and tend to further its purposes. It is unnecessary to decide whether the general law or the charter provisions control in the matter of the form of such demands. We are in accord with the contention of plaintiff that her written demand was sufficient to meet the requirement of the charter. Substantial compliance, only, is required. Knight v. City of Los Angeles, 1945, Cal.2d, 160 P.2d 779; Silva v. Fresno County, 1944, 63 Cal.App.2d 253, 146 P.2d 520; Sandstoe v. Atchison, T. & S. F. R. Co., 1938, 28 Cal.App.2d 215, 82 P.2d 216.

Assuming that the provisions of the charter properly require the itemization of such demands as a prerequisite to suit, we must give them a reasonable construction and one that will not lead to absurdities. As stated in Knight v. City of Los Angeles, supra [26 Cal.2d ——., 160 P.2d 781], ‘The rule of substantial compliance prevents the requirement of the impossible or absurd.’ The purpose of having claims itemized is to facilitate checking the amounts claimed with those which the city admits owing, and checking the several items going to make up the total to ascertain whether the city is under liability with reference thereto. Plaintiff's claim was filed soon after the accident and we think it contained a sufficient statement of the nature of her injuries. It would have been useless for her to make an estimate on November 16 as to the probable duration or severity of those injuries, without which estimate she could not intelligibly state the amount of her anticipated damages. It was enough to specify fracture of the leg and to state that it might result in a stiff knee. No more could she have estimated intelligently the special damages which she probably would sustain in the future on account of loss of wages, loss of earning capacity, and treatment of her injuries. Any estimate of such anticipated damages would have constituted no more than an offer of settlement and would have served in no way to accomplish the purposes of the several sections of the charter.

The second point urged by the defendant is that there was no evidence that the sidewalk area where plaintiff fell was under the possession, control or management of the city, or that the city was under any duty to keep the same in a reasonably safe condition. This contention is founded upon certain fragmentary evidence with respect to the activities of the Navy in the Terminal Island area commencing with December 7, 1941. Terminal Island is the land which forms the southerly and easterly boundary of Los Angeles Harbor. The particular section of the Island in question was used by commercial fishermen, including the Japanese. There is a minimum of evidence as to the extent of the activities of the Navy. For want of a better term, we may say that on December 7, 1941, the Navy ‘took over’ Terminal Island. It took exclusive possession of some sections and excluded the public therefrom; it also took control of all travel to and from the Island and required civilians passing to and from the Island to obtain and carry passes issued by the Navy; it stationed guards at different points, one of them being the northeast corner of Tuna and Cannery Streets. Plaintiff carried a pass which she regularly exhibited upon entering or leaving the Island. She came across the channel from San Pedro by ferry and was accustomed to use the sidewalk in question in passing to and from her work. Persons lawfully on the Island made free use of this sidewalk, without interference by the Navy. It was not closed to such use and travel at any time. From and after December 7, 1941, the city discontinued inspection and supervision of the sidewalk in question and of streets and sidewalks generally in the areas in which the activities of the Navy were manifested. There was no evidence of any agreement with the Navy upon the subject or that the Navy ever undertook or ever did any repair work on the streets or sidewalks. Two days before the date of plaintiff's accident, the Navy commenced the construction of a board fence along the northerly curb line of Cannery Street. By the 27th of October construction had progressed easterly to a point beyond the place where plaintiff fell. The fence was constructed of boards, about 5 feet high, some 4 to 6 inches wide, spaced 2 or more inches apart. The sidewalk was left open at Tuna Street and the fence was not intended to and did not bar or interfere with travel on the sidewalk. On each side of the fence was fastened a sign, ‘Property of United States Navy.’

There is nothing in this state of facts which would have relieved the city of the duty to keep the sidewalk in repair. The failure to inspect it and repair it was an act of voluntary omission on the part of the city and did not result from any necessity of fact nor find any excuse in law based upon the precautions that were being taken by the Navy to guard the Island and control the activities of the people thereon.

In June, 1943, the United States Government instituted an action to condemn some interest in the lands abutting on Cannery Street to the north of that street and west of Tuna Street, as well as certain parcels in other districts. The nature of the interest sought to be acquired by the Government is not disclosed by the record. It appears that the government, through the Navy, had entered into possession of the land sought to be condemned, but it is immaterial whether the purpose of the government was to condemn the fee, or, as suggested by some passages in the record, only the right of possession and use for a period of 5 years. Evidently there had been a decree of some sort entered, with which counsel in the case were familiar, but no copy of it was received in evidence nor were the terms of it otherwise proved or agreed upon except as hereinafter stated. The matter of the condemnation of the land or an interest in it by the government is of interest for the reason that the city now takes the position that title to the land adjoining Cannery Street on the north, and including the sidewalk in question, which was a part of the street, and the exclusive right to the possession and use thereof, had passed from the city to the United States Government. We find numerous assertions of this contention in the briefs of the city. Although the answer of the city denied that Cannery Street was a public street in the City of Los Angeles, there was ample evidence at the trial that it was laid out and constructed by the city and had been used as a public street from the time the street was improved and the sidewalk was constructed in 1924 to a date subsequent to October 27, 1943. It was not questioned at the trial, and is not questioned here, that it was so used for many years and that the sidewalk was a part of it. If, therefore, title or the right to possession and use of the sidewalk passed from the public to the United States Government at any time, so as to relieve the city of the duty of inspecting and maintaining the sidewalk, it was incumbent upon the city to prove that fact. This it failed to do.

Plaintiff introduced a map in evidence which was identified as a delineation of the streets in question, and the areas shown, according to the legend, as ‘Property of United States Navy.’ The map bears date 6–4–42 and the signature of the Harbor Engineer. It contains a scale in feet, and the testimony was that it was drawn to scale. The areas embraced in the taking were marked in yellow. One of these lies immediately adjacent to the north side of Cannery Street to the west of Tuna Stree. Cannery Street, as shown on the map, was scaled by one of the witnesses and he testified that the width was 100 feet. The map did not show the sidewalk separately. There was testimony to the effect that the sidewalk in question was included in the 100-foot width of Cannery Street, and it was shown by the map that the area in possession of the Navy did not include the sidewalk. Another map was received in evidence, which was prepared by the Harbor Department when Cannery Street was improved in 1924. Cannery Street, according to the scale of this map, was shown to be 100 feet wide, inclusive of the sidewalk. There was no evidence whatever that the government's suit affected Cannery Street or the sidewalk in question. That suit, so far as disclosed by the record, and the taking of possession by the Navy thereunder of the area north of the sidewalk, did not militate against or interfere with the use of the sidewalk by the public or relieve the city of its duty to maintain it in a reasonably safe condition for public use.

Defendant assigns as error the refusal of the following instruction: ‘If you believe that the erection of the fence along the southerly side of the sidewalk made the condition of the widewalk, where plaintiff fell, dangerous because it rendered the condition difficult to see, before plaintiff can recover in this case she must prove to your satisfaction that the City of Los Angeles or the Board of Harbor Commissioners of the City of Los Angeles had knowledge of such fact, and that after acquiring such knowledge, the City or the Board failed within a reasonable time to protect the public against it.’ The instruction was properly refused. The broken condition of the sidewalk was inherently dangerous. It is not necessary, nor is it proper, for the court to give instructions founded upon hypothetical factual situations other than those which are reasonably deducible from the evidence. The jury could not reasonably have concluded that the condition of the sidewalk was dangerous only because it was somewhat shaded by the fence. Furthermore, the statement that the proof must show that the city or the board ‘had knowledge of such fact,’ etc., was ambiguous and confusing. If it had been understood by the jury as we understand it, it was a statement that the city must have had knowledge not only of the condition, but also knowledge or appreciation of the dangerous character of it, and it was not a correct statement of the law. If the city had knowledge of the condition and the jury believed it to have been an obviously dangerous one, as it unquestionably was, the city could be excused from responsibility upon the theory that although it had knowledge of the condition, it failed to anticipate that it was one that might cause injury.

The court gave the following instruction: ‘Under date of December 12, 1941, the President of the United States, by Executive Order No. 8972, made provision for the establishment and maintenance of military guards and patrols for the purpose of protecting from injury or destruction any national defense material and utilities. The mere fact that such guards and patrols may have been maintained by the military authorities did not relieve the defendant, City of Los Angeles, a municipal corporation, its officers or boards, from the duty of maintaining the public streets and sidewalks within its territorial boundaries, including its Harbor Department, in a reasonably safe condition.’ It is contended that it was error to give this instruction. Defendant says: ‘The instruction practically told the jury that the Navy was on that property by Presidential Order, and the Presidential Order did not relieve the City of the duty of maintaining the sidewalk.’ Defendant had made much of the fact that the Navy had entered upon Terminal Island by taking exclusive possession of sections of it and by guarding the remainder. In cross-examining plaintiff, counsel for defendant exhibited to her a photograph and read therefrom the inscription on a sign, ‘Terminal Island is Under Navy Jurisdiction by Presidential Executive Order. (Signed) Commander _____,’ and plaintiff was asked whether she saw such a sign at the entrance to the ferry as she traveled to and from the Island; an objection was sustained but the question was immediately repeated and plaintiff answered that she did not remember. The fact that there was such a sign was disclosed to the jury in this indirect manner. Furthermore, the Harbor Engineer, called as a witness for plaintiff, testified that he had placed on a map which was used in evidence such statements as ‘Sign on fence, ‘Property of U. S. Navy,’ Sign on Building, ‘Warning, Federal Government Property, No Trespassing Under Penalty of Law.’' He testified that he had done this because the signs were on the property. The witness at numerous points in his testimony made the statement that the property was ‘under the jurisdiction of the United States Navy’ and that ‘the United States Navy assumed jurisdiction of that area,’ and similar statements. The instruction was a correct statement of the law. Although there was no evidence as to the terms of Executive Order 8972, enough had been said about such an order as to call for an explanatory instruction.

The court instructed as follows: ‘The amount of damages alleged in the complaint to have been suffered by plaintiff is $8895.00. This allegation is merely a claim and is not evidence and must not be considered by you as evidence. It does, however, fix a maximum limit and you are not permitted to award plaintiff more than that amount.’ Defendant points out that the sum of the items of damage alleged in the complaint was $7,385, whereas the prayer, as amended, was for the sum of $8,895. It is not contended that it was improper to advise the jury as to the amount demanded in the complaint, but it is insisted that in stating the amount the prayer should have been disregarded and the amount should have been stated as the sum of the items of damage alleged. We have never been able to see the advisability of stating to the jury the amount demanded in a complaint for damages. It seems somewhat futile, if not ridiculous, to advise a jury as to the amount demanded by the plaintiff and then tell them that it is not evidence and they are not to consider it. It is a rule of law that the damages may not exceed the amount demanded in the complaint, but no purpose is served by stating the rule to the jury. If the verdict is excessive, the court will reduce it. Plaintiff alleged her general damage to be $5,000, her special damage $2,385. The verdict was for $5,000. No harm resulted from the mistake as to the amount demanded, if in fact a mistake was committed.

The final contention to be noticed is that plaintiff was guilty of contributory negligence as a matter of law. Plaintiff testified that at the point where she fell, one piece of the sidewalk overlapped the other by about three inches; that this condition extended clear across the sidewalk; that she had been working on Terminal Island for five months, had stepped over the crack twice a day; that she did not see the break or have it in mind just before she fell, and that the newly erected fence cast shadows, although she was not at the time aware of the change that this made in the lighting conditions. This testimony did not prove as a matter of law that plaintiff was guilty of contributory negligence. The boards of the fence were spaced two inches or more apart. Such shadows as were cast would have alternated with strips of light; plaintiff had not passed along the sidewalk before under these conditions; she evidently came upon the break in the sidewalk before she expected and without realizing that the changed conditions, due to the erection of the fence, made the break more difficult to see. The facts were such as to allow of reasonable differences of opinion as to whether plaintiff's failure to see the break under the new and unfamiliar conditions was a failure to use ordinary care. Defendant would have us hold that plaintiff's conduct was no more excusable than it would have been if she had fallen over the obstruction in broad daylight, under conditions with which she was thoroughly familiar. The argument was one for the jury upon a question of fact. As a proposition of law it is not sustainable.

The judgment is affirmed.

SHINN, Justice.

DESMOND, P. J., and WOOD, J., concur.