6 Cal. 528, James v. City of San Francisco

Citation:6 Cal. 528
Opinion Judge:TERRY, Judge
Party Name:JAMES v. THE CITY OF SAN FRANCISCO
Attorney:Wm. Duer, for Appellant. Manchester & Hodges, for Respondent.
Judge Panel:JUDGES: Mr. Justice Terry delivered the opinion of the Court. Mr. Chief Justice Murray concurred.
Case Date:October 01, 1856
Court:Supreme Court of California
 
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Page 528

6 Cal. 528

JAMES

v.

THE CITY OF SAN FRANCISCO

Supreme Court of California

October, 1856

Page 529

Appeal from the District Court of the Twelfth Judicial District.

This was an action brought against the city of San Francisco, for damages for injuries sustained by plaintiff in falling into the excavation caused by grading Clay street, near Powell, in the city of San Francisco.

The plaintiff alleged the serious injury sustained by him by falling into the excavation made in grading the street, and that the accident occurred on a dark night, there being no light nor railing placed on the spot to prevent foot passengers from falling into the chasm made in the street, which was about twenty feet deep. The defendant demurred to the complaint on the ground that it did not show any cause of action against the defendant. The demurrer being overruled by the Court below, defendant answered.

On trial plaintiff established the allegations of his complaint, and defendant proved that the contract to grade the street in question was given to the lowest bidder, as required by law, and that the accident to plaintiff occurred during the progress of the work.

Judgment was rendered in the Court below for $ 5,000 against defendant, who moved for a new trial, which was overruled, and defendant appealed.

COUNSEL

Wm. Duer, for Appellant.

1. To render a municipal corporation liable for a non-feasance, it is requisite that a duty should be imposed upon it by law. (Handy v. The Mayor of Lyme Regis, 5 Bing. 91; Hicock v. Trustees of Plattsburg, 15 Barb. 434, and authorities there cited; and see dissenting opinion of Sandford, 5 Sand. S.C. R. 297; 3 La. Ann. Rep. 646, per Eastes, C. J.)

2. The charter of the City of San Francisco confers upon the Common Council a discretionary legislative power, to open and improve streets, but imposes upon them no duty to do so. (See Act to reincorporate San Francisco, Art. 3, Sec. 13; Art. 1, Sec. 1; Art. 2, Sec. 4; Art. 3, Sec. 3; Art. 3, Sec. 12; Art. 5, Sec. 2.)

3. If an obligation or duty be imposed, yet the city is not liable to a private civil action at the suit of an individual. (2 Hill S.C. R. 371; 3 Peters, 409; see opinion of Sandford, 5 Sand. S.C. R. 319; 2d. 322.)

4. The obligation of the city to keep the streets in repair is necessarily suspended while they are undergoing repairs and...

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