Alves v. Lopez
| Decision Date | 28 April 1958 |
| Citation | 324 P.2d 652,159 Cal.App.2d 705 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Anna ALVES, Plaintiff and Appellant, v. A. A. LOPEZ and Mrs. A. A. Lopez, husband and wife, City of San Jose, a body politic, A. P. Hammon, Harold Flannery, Harold Cunningham, John Katsinis and Mary Katsinis, husband and wife, Charles Dattilo and Jane Dattilo, husband and wife, and Andreas Tsagalakis, Defendants and Respondents. Civ. 17694. |
Harret W. Mannina, San Jose, for appellant.
Ferdinand P. Palla, City Atty., Elmer D. Jensen, Associate Counsel, San Jose, for respondent City of San Jose.
Plaintiff appeals from a judgment of nonsuit, claiming that as to defendants A. A. Lopez, John and Mary Katsinis and City of San Jose sufficient evidence was introduced to take the case to the jury.
Lopez is a cement contractor who was engaged by Mr. and Mrs. Katsinis to repair the sidewalk in front of their property in the City of San Jose. On the night of September 29, 1953, plaintiff was walking along the sidewalk from her home adjoining that of the Katsinis' when she observed a barrier across the sidewalk which Lopez had repaired. It was dark and there is evidence that there were no warning lights of any kind in the vicinity. Plaintiff went into the street to walk around the barrier. Her foot struck something hard and she fell and injured herself. She could not tell what her foot struck but as she was attempting to get up she felt debris under her hands. She could not determine the nature or extent of this debris.
It is appellant's theory that sufficient evidence was produced before the jury to support a finding that this debris was broken cement from the old sidewalk which had been removed by Lopez and negligently left in the street.
Only two witnesses gave any evidence of seeing broken cement in the area. A Mrs. Texeira testified that on that evening, when there were no workmen about, she saw She did not testify specifically that any of the broken cement was in the roadway. On cross-examination this witness gave the following testimony:
An assistant City Engineer, Mr. Cunningham, testified that he inspected the area at 11 a. m. and again about 6:30 p. m. on the day of appellant's fall. He testified that at 11 a. m. he saw 'broken pieces of cement' but at 6:30 p. m. the portion of the street opposite the barricades had been swept clean.
A witness who helped appellant to her home after the accident and appellant's sister...
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...than a mere conjecture or surmise that a fact is as alleged in order to warrant submission of the question to a jury (Alves v. Lopez, 159 Cal.App.2d 705, 324 P.2d 652), and a court should not put itself in the incongruous position of destroying logic to hold a case in court. MacDonald v. Ja......
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