Peters v. City and County of San Francisco

Decision Date21 August 1953
Citation41 Cal.2d 419,260 P.2d 55
PartiesPETERS v. CITY AND COUNTY OF SAN FRANCISCO et al. S. F. 18772.
CourtCalifornia Supreme Court

FitzGerald Ames, Sr., and Guernsey Carson, San Francisco, for plaintiff and appellant.

Dion R. Holm, City Attorney, and Lawrence S. Mana, Deputy City Attorney, San Francisco, for defendant and appellant.

Daniel C. Miller, Anna White Garlund, Keith, Creede & Sedgwick and Frank Creede, San Francisco, for respondents.

GIBSON, Chief Justice.

Plaintiff fell and was seriously injured while walking on a sidewalk in San Francisco in front of an apartment house belonging to defendants Duque. She sued for damages, joining the city and the Duques and alleging that her injuries were proximately caused by the negligence of all defendants. The jury found for the plaintiff against the city but against the plaintiff with regard to the liability of the Duques. Judgment was entered on the verdict, and both plaintiff and the city have appealed.

The sidewalk in the area where the accident occurred was fifteen feet wide and was already in existence when the apartment house was erected in 1919 by one of the Duques' predecessors in title. The building contained a garage having doors which opened directly onto the sidewalk. The garage floor was lower than the adjoining sidewalk, and, at or about the time the building was erected, a ramp or slope had been made in the walk leading down to the level of the garage floor in order to provide access for automobiles. The depression created by the alteration was wide enough to accommodate a car, and it reached a depth of eleven inches below the normal level of the sidewalk at the building line. The slope extended six feet, seven inches out from the building to a point approximately halfway across the sidewalk. The Duques acquired the property in 1940, and at the time the accident occurred the driveway was in substantially the same condition as when it was constructed. Plaintiff, an elderly woman, was walking along the sidewalk alone and did not see the depression caused by the driveway. She stepped into it unexpectedly at a point approximately six feet away from the building line and fell to the ground, breaking her hip.

Plaintiff's Appeal

Plaintiff's principal contention is that the court erred in instructing the jury with respect to the liability of the Duques for the condition of the sidewalk where plaintiff fell. The jury was told that 'No affirmative duty rested on said defendants Duque as the owners of property abutting said sidewalk or otherwise to keep the sidewalk in safe condition, but our law does provide that when the owner of property abutting a sidewalk creates, by some positive action, a condition which is likely to cause harm to persons lawfuly using the sidewalk, and a person so using the walk is injured as a proximate result of such condition, the property owner is then liable for that injury, in the absence, of course, of contributory negligence.'

The instruction does not contain an accurate statement of the law with respect to the liability of a property owner for the condition of the sidewalk adjoining his property. The rule is that an abutting landowner may be held liable for the dangerous condition of portions of the public sidewalk which have been altered or constructed for the benefit of his property and which serve a use independent of and apart from the ordinary and accustomed use for which sidewalks are designed. Sexton v. Brooks, 39 Cal.2d 153, 157, 245 P.2d 496. The instruction erroneously implies that only the property owner who himself creates the dangerous condition in the sidewalk may be held liable therefor. The duty to maintain portions of a sidewalk which have been altered for the benefit of the property runs with the land, and a property owner cannot avoid liability on the ground that the condition was created by or at the request of his predecessors in title. Sexton v. Brooks, supra, 39 Cal.2d at page 157-158, 245 P.2d 496.

There was ample evidence from which it could be inferred that the sidewalk had been altered by one of Duques' predecessors in title for the benefit of the property to serve a use independent of and apart from the ordinary accustomed use for which sidewalks are designed, and it appears that the jury might have returned the verdict in favor of the Duques under the erroneous belief that they were automatically relieved from liability because of the fact that they had nothing to do with creating the condition in question.

The Duques nevertheless argue that the judgment in their favor should be affirmed because the evidence assertedly establishes as a matter of law that plaintiff was guilty of contributory negligence. It appears from photographs which were placed in evidence that the depression in the sidewalk extended several feet farther out from the building line than did other driveways in the vicinity. Plaintiff testified that she was walking along the approximate center of the sidewalk in a leisurely manner, somewhat closer to the building line than to the curb. She had never before been on that side of the street. It was shortly before noon, the weather was clear, and the sun was shining directly overhead. Plaintiff stated that she looked 'straight ahead' as she walked and did not look down at her feet. She said that she noticed the deep part of the depression near the garage door but that she did not see the portion of the driveway which lay in her line of travel and that she 'did not dream that it came out that far * * *.' When asked if she saw the particular place in the driveway where she fell, plaintiff said 'You couldn't. It looks just like the sidewalk. The drop deceives you * * * it is not visible until it is too late. It was not visible.'

It is well settled that, in the absence of notice or knowledge to the contrary, a pedestrian making normal use of the public sidewalk has a right to asume that it is in reasonably safe condition, and while he must use ordinary care for his personal safety and make reasonable use of his faculties to avoid injury to himself, he is not required to keep his eyes fixed on the ground or to be on a constant lookout for danger. Meindersee v. Myers, 188 Cal. 498, 499, 503-504, 205 P. 1078; Perkins v. Sunset Telephone Co., 155 Cal. 712, 722, 103 P. 190; Barry v. Terkildsen, 72 Cal. 254, 256, 13 P. 657; Sykes v. City of Los Angeles, 110 Cal.App.2d 57, 60-61, 241 P.2d 1004; Owen v. City of Los Angeles, 82 Cal.App.2d 933, 939-940, 187 P.2d 860; Lay v. Pacific Perforating Co., 62 Cal.App.2d 233, 237, 144 P.2d 395; Scholz v. Hilbert, 30 Cal.App.2d 228, 231, 85 P.2d 902; City of San Diego v. Perry, 9 Cir., 124 F.2d 629, 631-632; Berland v. City of Hailey, 61 Idaho 333, 101 P.2d 17, 19; Little v. Kansas City, 239 Mo. App. 1007, 197 S.W.2d 1005, 1006-1008; see cases collected in 19 McQuillan, Municipal Corporations (1950) §§ 54.122-54.123. Even if a defect is one which might be visible to a person who is looking for such a condition, it does not follow that a pedestrian is guilty of negligence as a matter of law in failing to see and avoid it. Sykes v. City of Los Angeles, supra, 110 Cal.App.2d 57, 60-61, 241 P.2d 1004; see cases collected in 19 McQuillan, Municipal Corporations (1950) at pp. 458-459. Whether plaintiff made reasonable use of her faculties and whether she should have observed the condition which caused her injury were questions of fact. Eastlick v. City Los Angeles, 29 Cal.2d 661, 674, 177 P.2d 558, 170 A.L.R. 225; Sykes v. City of Los Angeles, supra, 110 Cal.App.2d 57, 60-61, 241 P.2d 1004; Owen v. City of Los Angeles, supra, 82 Cal.App.2d 933, 939-940, 187 P.2d 860.

The evidence was clearly sufficient to support a finding that the driveway was dangerous, and it appears that the jury might have returned a verdict in favor of plaintiff against the Duques if it had been properly instructed on the law applicable to the liability of abutting property owners for conditions they create or maintain on the public sidewalk. Accordingly, the judgment in favor of the Duques must be reversed.

The City's Appeal

The city contends that the judgment against it must be reversed because plaintiff assertedly failed to file a verified claim with the clerk of the board of supervisors, as required by statute. Stats.1931, p. 2475; 2 Deering's Gen.Laws, Act 5149, now Gov.Code, § 53052. While plaintiff was bedridden in a nursing home following the accident she signed an original and several carbon copies of a claim against the city in the presence of her attorney. The claim contained a separate verification in the usual form, and plaintiff signed it on the original and some of the copies. The attorney then took the original and the copies to a notary public and informed her that he had seen plaintiff sign them, whereupon the notary signed the jurat on the original. The following day the attorney filed the signed and notarized original of the claim with the city controller's office. Immediately thereafter he presented the clerk of the board of supervisors with two carbon copies of the claim and informed him that he had filed the original with the controller. One of the copies was signed by plaintiff. The clerk of the board stampted the signed claim 'Received,' returned it to the attorney, and retained the unsigned copy for the files.

The city argues that the claim was not properly verified because not signed and acknowledged in the presence of the notary and that, even if it be assumed that the verification was proper, the requirements of the statute were not satisfied by presenting the original to the city controller and filing an unsigned copy with the board of supervisors.

The claim may be regarded as a 'verified' one within the meaning of the statute although plaintiff did not appear before a notary to sign the verification. Cf. Germ v. City & County of San Francisco, 99 Cal.App.2d 404, 222 P.2d 122 (involving an identical provision in...

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