41 Cal.2d 419, 18772, Peters v. City & County of San Francisco

CourtUnited States State Supreme Court (California)
Writing for the Court[11] Gibson
Citation260 P.2d 55,41 Cal.2d 419
Docket Number18772
PartiesPeters v. City & County of San Francisco

Page 419

41 Cal.2d 419

260 P.2d 55

CARRIE C. PETERS, Plaintiff and Appellant,

v.

CITY AND COUNTY OF SAN FRANCISCO, Defendant and Appellant

JEANNE DUQUE et al., Respondents.

S. F. No. 18772.

Supreme Court of California

Aug. 21, 1953

In Bank.

Page 420

[Copyrighted Material Omitted]

Page 421

[Copyrighted Material Omitted]

Page 422

COUNSEL

Fitzgerald Ames, Sr., and Guernsey Carson for Plaintiff and Appellant. Dion R. Holm, City Attorney, and Lawrence S. Mana, Deputy City Attorney, for Defendant and Appellant. Daniel C. Miller, Anna White Garlund, Keith, Creede, &amp Sedgwick and Frank Creede for Respondents

OPINION

GIBSON, C.J.

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 15 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

Page 423

provide access for automobiles. The depression created by the alteration was wide enough to accommodate a car, and it reached a depth of 11 inches below the normal level of the sidewalk at the building line. The slope extended 6 feet, 7 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 6 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 lawfully 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 .)

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 p. 157-158.)

Page 424

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 assume 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. Meyers, 188 Cal. 498, 503-504 ; Perkins v. Sunset Tel. & Tel. Co., 155 Cal. 712, 722 ; Barry v. Terkildsen, 72 Cal. 254, 256 [1 Am.St.Rep. 55]; Sykes v. City of Los Angeles, supra, 110 Cal.App.2d 57, 60-61 ; Owen v. City of Los Angeles, 82 Cal.App.2d 933, 939-940 ; Lay v. Pacific Perforating Co., 62 Cal.App.2d 233, 237 [144 P.2d

Page 425

395]; Scholz v. Hilbert, 30 Cal.App.2d 228, 231 ; City of San Diego v. Perry, supra, 124 F.2d 629, 631-632; Berland v. City of Hailey, 61 Idaho 333 [19.]; Little v. Kansas City, 239 Mo.App. 1007 [197 S.W.2d 1005, 1006-1008]; see cases collected in 19 McQuillin, Municipal Corporations [1950], sections 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; see cases collected in 19 McQuillin, 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 of Los Angeles, 29 Cal.2d 661, 674 [170 A.L.R. 225]; Sykes v. City of Los Angeles, supra, 110 Cal.App.2d 57, 60-61; Owen v. City of Los Angeles, supra, 82 Cal.App.2d 933, 939-940.)

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, section 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...

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76 practice notes
  • 141 F.Supp. 833 (N.D.Cal. 1956), 33585, Guy F. Atkinson Co. v. Merritt, Chapman & Scott Corp.
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Courts. 9th Circuit. Northern District of California
    • June 20, 1956
    ...on the part of Government employees. The Government quotes the following dictum from Peters v. City and County of San Francisco, 41 Cal.2d 419, 431, 260 P.2d 55, 62: 'As noted above, the rule against contribution between joint tort-feasors admits of some exceptions, and a right of indemnifi......
  • 216 Cal.App.3d 510, H003469, Williams v. Foster
    • United States
    • California Court of Appeals
    • December 8, 1989
    ...sidewalk. (See e.g. Lee v. Ashizawa (1964) 60 Cal.2d 862, 863-864, 37 Cal.Rptr. 71; Peters v. City & County of San Francisco (1953) 41 Cal.2d 419, 423; Laurenzi v. Vranizan (1945) 25 Cal.2d 806, 809-810; Granucci v. Claasen (1928) 204 Cal. 509, In Eustace v. Jahns, supra, 38 Cal. 3, the......
  • 87 Cal.App.3d 626, 51350, Rodriguez v. McDonnel Douglas Corp.
    • United States
    • California Court of Appeals
    • December 21, 1978
    ...all-or-nothing common law doctrine of Equitable indemnity. As the court explained in Peters v. City & County of San Francisco (1953) 41 Cal.2d 419, 431, 62, "a right of indemnification may arise as a result of Contract or Equitable considerations . . . ." (Emphasis added.) Non......
  • 92 Cal.App.3d 934, 18259, Commercial Standard Title Co. v. Superior Court
    • United States
    • California Court of Appeals
    • May 11, 1979
    ...the all-or-nothing common law doctrine of Equitable indemnity. As the court explained in Peters v. City & County of San Francisco (41 Cal.2d 419) . . . , 'a right of indemnification may arise as a result of Contract or Equitable considerations . . ..' (Italics added.) None of the discus......
  • Request a trial to view additional results
74 cases
  • 141 F.Supp. 833 (N.D.Cal. 1956), 33585, Guy F. Atkinson Co. v. Merritt, Chapman & Scott Corp.
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Courts. 9th Circuit. Northern District of California
    • June 20, 1956
    ...on the part of Government employees. The Government quotes the following dictum from Peters v. City and County of San Francisco, 41 Cal.2d 419, 431, 260 P.2d 55, 62: 'As noted above, the rule against contribution between joint tort-feasors admits of some exceptions, and a right of indemnifi......
  • 216 Cal.App.3d 510, H003469, Williams v. Foster
    • United States
    • California Court of Appeals
    • December 8, 1989
    ...sidewalk. (See e.g. Lee v. Ashizawa (1964) 60 Cal.2d 862, 863-864, 37 Cal.Rptr. 71; Peters v. City & County of San Francisco (1953) 41 Cal.2d 419, 423; Laurenzi v. Vranizan (1945) 25 Cal.2d 806, 809-810; Granucci v. Claasen (1928) 204 Cal. 509, In Eustace v. Jahns, supra, 38 Cal. 3, the......
  • 87 Cal.App.3d 626, 51350, Rodriguez v. McDonnel Douglas Corp.
    • United States
    • California Court of Appeals
    • December 21, 1978
    ...all-or-nothing common law doctrine of Equitable indemnity. As the court explained in Peters v. City & County of San Francisco (1953) 41 Cal.2d 419, 431, 62, "a right of indemnification may arise as a result of Contract or Equitable considerations . . . ." (Emphasis added.) Non......
  • 92 Cal.App.3d 934, 18259, Commercial Standard Title Co. v. Superior Court
    • United States
    • California Court of Appeals
    • May 11, 1979
    ...the all-or-nothing common law doctrine of Equitable indemnity. As the court explained in Peters v. City & County of San Francisco (41 Cal.2d 419) . . . , 'a right of indemnification may arise as a result of Contract or Equitable considerations . . ..' (Italics added.) None of the discus......
  • Request a trial to view additional results

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