City of San Diego v. Perry, 9861.

• Decision Date: 30 December 1941
• Docket Number: No. 9861.,9861.
• Parties: CITY OF SAN DIEGO v. PERRY et al.
• Court: U.S. Court of Appeals — Ninth Circuit

124 F.2d 629 (1941)

CITY OF SAN DIEGO v. PERRY et al.

No. 9861.

Circuit Court of Appeals. Ninth Circuit.

December 30, 1941.

Jacob Weinberger, City Atty., and J. H. McKinney and Morey S. Levenson, Deputy

City Attys., all of San Diego, Cal., for appellant.

Zach Lamar Cobb, of Los Angeles, Cal., and J. K. Stickney, Jr., Stickney & Stickney, and Gray, Cary, Ames & Driscoll, all of San Diego, Cal., for appellees.

Before DENMAN, STEPHENS, and HEALY, Circuit Judges.

STEPHENS, Circuit Judge.

Appellee, a resident of Connecticut, instituted legal action in the U. S. District Court for the Southern District of California against the City of San Diego, California and Colonial Corporation of La Jolla, a California corporation, for damages in the sum of $53,381.64, in compensation for personal injuries allegedly received by her in a fall upon property of the municipality, to-wit: a sidewalk.

The case was tried by the Judge without the aid of a jury and resulted in a judgment against the City for $4,858.63 plus interest and costs and judgment in favor of the Colonial Corporation for its costs. The City appealed to this court from the judgment against it, and has named Colonial Corporation as co-appellee. Appellant states (City's Opening Brief) "the liability, if any, should be borne by the appellee corporation and not by the City of San Diego". We hold that no question as to the Corporation's liability to either plaintiff or the City is before us on this appeal.

We briefly summarize the facts as developed at the trial in order more readily to understand the arguments of the parties to this appeal.

Plaintiff, accompanied by a friend, in April, 1939, was visiting in the La Jolla section of the City of San Diego. Together they walked up Prospect Street in said city to the Colonial Hotel, which is located at the corner of Prospect and Jenner Streets. This walk along Prospect Street, adjacent to the Colonial Hotel, was practically level, the grade being only 1%. After a short visit plaintiff and her friend left the hotel, went along the practically level Prospect Street sidewalk, over which they had traveled a few minutes before, a distance of approximately fifty feet to its intersection of Jenner Street. At the corner, they turned to their right, in a westerly direction on the Jenner Street sidewalk, so that they then faced toward the ocean. Approximately fifteen or twenty feet from where plaintiff turned from Prospect Street onto Jenner Street there is a change or "break in the grade" down the Jenner Street slope. This grade change occurs diagonally across the sidewalk and abruptly increases the drop from approximately 1% to approximately 14%, or about 3½ inches per two feet. This sidewalk surface below the grade increase had been trowelled with filler in its construction and was "extremely smooth and exceedingly slick and slippery", as found by the court from supporting evidence and personal inspection of the court. Plaintiff, not noting the break in grade stepped over it, lost her balance and fell, sustaining the injuries for which damages were awarded.

It is stipulated that the sidewalk upon which plaintiff fell was constructed by the predecessor owner of the hotel operated by Colonial Corporation, at least twelve years prior to the accident. It had been in use as a public sidewalk throughout that period.

There is no dispute regarding the amount of damages to the plaintiff, and the City's appeal may be divided into two headings. First, it is urged that the City had no notice, actual or constructive, of the condition of the sidewalk, for such length of time as would reasonably enable it to fix or repair the same; and second, that the plaintiff was contributorily negligent.

The trial court found as a fact that the City had no actual notice of the condition of the sidewalk, but that it did have constructive notice thereof, and this finding is challenged by the City on the authority of Nicholson v. City of Los Angeles, 5 Cal.2d 361, 54 P.2d 725 and Whiting v. City of National City, 9 Cal.2d 163, 69 P.2d 990. In its attempt to bring the instant case within the doctrine of these cases the City urges that the condition of the sidewalk at the point of the accident constituted not more than a defect of minor character.

At the outset, it should be noted that the California Public Liability Act of 1923, Stats.1923, p. 675, Deering's Gen.Laws 1931, Act 5619, renders the city liable for "injuries to persons and property resulting from the dangerous or defective condition of public streets, highways, buildings, grounds, works and property in all cases where the * * * board, officer or person having authority to remedy such condition, had knowledge or notice of the defective or dangerous condition * * * and failed or neglected, for a reasonable time after acquiring such knowledge or receiving such notice, to remedy such condition or failed and neglected for a reasonable time after acquiring such knowledge or receiving such notice to take such action as may be reasonably necessary to protect the public against such dangerous or defective condition". It should further be noted that the California Courts have consistently...