Sykes v. City of Los Angeles

• Citation: 110 Cal.App.2d 57,241 P.2d 1004
• Court: California Court of Appeals
• Decision Date: 26 March 1952
• Parties: SYKES v. CITY OF LOS ANGELES. Civ. 18595.

Page 1004

241 P.2d 1004

110 Cal.App.2d 57

SYKES v. CITY OF LOS ANGELES.

Civ. 18595.

District Court of Appeal, Second District, Division 1, California.

March 26, 1952.

Hearing Denied May 22, 1952.

Ray L. Chesebro, City Atty., Bourke Jones, Asst. City Atty., Joseph N. Owen, W. L. Weber, Deputy City Attys., Los Angeles, for appellant.

Obegi & High, Jess F. High, Van Nuys, for respondent.

WHITE, Presiding Justice.

This appeal is prosecuted by the City of Los Angeles from a judgment against it entered upon the verdict of a jury in an action for damages for personal injuries sustained by plaintiff as the result of a fall on a defective public sidewalk. Appellant city contends that the evidence shows without conflict that plaintiff was guilty of contributory negligence; that the sole proximate cause of her injuries was plaintiff's negligence; that plaintiff had knowledge of the defect in the sidewalk, and under the evidence was not entitled to the benefit of the plea of 'momentary forgetfulness' to excuse her negligence; and that the court erred in refusing to give two proffered instructions on the subject of the care required of plaintiff.

Taking up first the question of the refusal of instructions, the city requested an instruction to the effect that while a pedestrian using a sidewalk is not required to keep his eyes fastened constantly on the ground before him, he must exercise ordinary prudence in observing where he is going so as to avoid any peril which ordinary prudence and reasonable use of his eyes would disclose, and a second instruction to the effect that it was plaintiff's duty 'to use her sense of sight as an ordinarily reasonable and prudent person would have used it, and to walk in a reasonable manner commensurate with conditions which should have been revealed to her by the ordinary use of her sense of sight'.

The failure to give the requested instructions was not prejudicial error. The subject was adequately covered by other instructions. For example the court instructed the jury as follows:

'General human experience justifies the inference that when one looks in the direction of an object which is clearly visible, that person sees the object. When there is evidence to the effect that one did look but did not see that which was in plain sight, and did not see that which could have been seen, in the exercise of ordinary care, it follows that there is an irreconcilable conflict in such evidence or that the person was negligently inattentive.'

'If you find from the evidence that the plaintiff had knowledge of the existence of the defect prior to her accident then you may consider such fact of prior knowledge on the part of the plaintiff in determining whether the plaintiff exercised ordinary care in walking along the sidewalk, and in determining whether the plaintiff was contributorily negligent at the time and place of her accident.'

'Contributory negligence as used in these instructions means the want of ordinary care on the part of plaintiff and is not different from negligence, and like negligence must contribute proximately to cause the accident, but it matters not how slight nor in what degree it contributes thereto, provided it is a direct or proximate contributing cause, and therefore if plaintiff was guilty of any negligence, no matter how slight or in what degree, which contributed proximately to cause the accident, plaintiff cannot recover.'

It is the rule that instructions should not be considered singly, but in their entirety, and from an examination of the instructions given in the case now engaging our attention we have no hesitancy in saying that the jury was clearly, understandingly and unerringly advised of the law applicable to each and all of the issues framed by the pleadings or raised by the evidence.

Stating the facts in the light most favorable to plaintiff and respondent (facts or evidence relied on by appellant will be mentioned in considering appellant's contentions on appeal), it appears that on the date of the accident to plaintiff and for some time prior thereto, a portion of the sidewalk on the south side of Ventura Boulevard between Sherman Oaks Avenue and Sepulveda Boulevard, had become cracked, and a slab of the walk was tilted in such a way that the south edge of the slab was approximately six inches above the normal sidewalk level, the height of the raised area diminishing in a northerly direction, the extreme northern edge being one-half inch, more or less, above the normal sidewalk level. People other than plaintiff, using the sidewalk, had stumbled at this location.

On September 15, 1949, about 3 p. m., plaintiff, 63 years of age, in company with a friend, was walking along the sidewalk in an easterly direction. She was walking on the south side of the walk, her friend on the north side. They were, according to plaintiff, 'just walking along', engaged in conversation. The toe of plaintiff's right foot struck the raised...