Anderson v. San Joaquin County

• Citation: 244 P.2d 75,110 Cal.App.2d 703
• Court: California Court of Appeals Court of Appeals
• Decision Date: 02 May 1952
• Parties: ANDERSON et al. v. SAN JOAQUIN COUNTY. Civ. 8083.

Page 75

244 P.2d 75

110 Cal.App.2d 703

ANDERSON et al. v. SAN JOAQUIN COUNTY.

Civ. 8083.

District Court of Appeal, Third District, California.

May 2, 1952.

Hearing Denied June 26, 1952.

Blewett, Blewett & Macey, Jones, Lane & Weaver, and Frederick L. Felton, all of Stockton, for appellant.

Hoberg & Finger, San Francisco, for respondent.

SCHOTTKY, Justice pro tem.

This action was brought against appellant county by the surviving widow and children of Walter Anderson who was killed in an automobile accident alleged to have been caused by the defective condition of a county road. They jury returned a verdict in favor of plaintiffs in the amount of $50,000, and judgment was entered in that amount. Defendant's motion for a new trial was denied. The county has appealed from the judgment. This court in 97 Cal.App.2d 330, 217 P.2d 479, held that the claim filed by plaintiffs with the county sufficiently complied with the claims statute.

Appellant relies for a reversal of the judgment upon two main contentions: (1) that the evidence is insufficient to show that the county had actual or constructive notice of any dangerous or defective condition of the highway; and (2) that the court erred in giving to the jury an instruction on the presumption of due care of the deceased.

Before discussing these contentions we shall summarize briefly the evidence as shown by the record.

The accident occurred on the Kasson Road, a north-south county road which has existed for many years. The road is used as a short cut from U. S. Highway 50 to Modesto. The decedent was traveling in a southerly direction. At the place of the accident there is a slight curve to the west. At this curve the decedent lost control of his automobile and thereafter collided with a heavy truck proceeding in the opposite direction. There were various chuck holes in the pavement on this curve. Witness Northrup, a swamper riding in the truck described the accident as follows: 'I saw this car coming just the other side of the turn. He was, I presume, on the highway because the car was being handled all right and he come into the turn and the car started to bob and pitch around a little bit, and as he got in the middle of the turn, why, the car's bobbing got more violent and he come more around on our side yet. The right hand tires got off the highway onto the shoulder and then he come back onto the highway and come across the highway and collided with us.'

The County Engineer, Manthey, testified that he had driven over the road 30 days before the accident, and had noted nothing unusual about its condition, i. e., didn't notice whether there was a drop from the pavement to the road shoulder; that he noticed nothing unusual in the condition of the road after the accident; that after the accident he observed no conditions requiring repairs; that chuck holes could occur in that road overnight. This witness testified that if he had seen such a condition as depicted by Plaintiff's Exhibit 3 (a photograph of the curve) he would have ordered it repaired.

Respondents produced several witnesses who testified in detail as to the condition of the road at the place of the accident, and the length of time the condition had existed. These witnesses were residents of the community and testified that the chuck holes at the curve were from two to six inches deep. These holes extended from the edge of the roadway into the traveled portion from one to one and one-half feet. There was not space enough for an automobile to travel the right side of the road without hitting the holes. Witness Dethlefsen testified: 'Well, as you approach the turn on the right hand side going south, there were a number of chuck holes about fifty feet on each side and right at the center of the turn they became deeper. It was impossible to pass a car on that turn without driving off the pavement and straddling the chuck holes, one wheel on the pavement and the other on the shoulder of the road,' and 'as a farmer, I usually carry a rule in my pocket and I made a point to measure it, and it was slightly under six feet from the center line to the edge of the pavement.'

As to the length of time the defective condition had existed, the following testimony was given: Witness Brazil testified that he traveled the road two or three times daily, and the condition had existed from five to six months before the accident. Witness Aspussin testified the condition had existed about three or four months. Witness Dethlefsen testified that the condition had existed for two or three months. Another witness testified the condition had existed for 'at least two months.' Another witness placed the time at 'a month or six weeks, or maybe longer.'

Respondents contend that the evidence amply establishes both actual and constructive notice to the appellant county. They cite Perry v. City of San Diego, 80 Cal.App.2d 166, 181 P.2d 98, 101, where the court quoted from Fackrell v. City of San Diego, 26 Cal.2d 196, 157 P.2d 625, 158 A.L.R. 773, as follows:

'Actual notice of a defective or dangerous condition is not required. Constructive notice satisfies the statute. Laurenzi v. Vranizan, 1945, 155 P.2d 633; Dawson v. Tulare Union High School, 1929, 98 Cal.App. 138, 142, 276 P. 424; Hook v. City of Sacramento, 1931, 118 Cal.App. 547, 553, 5 P.2d 643; Bennett v. Kings County, 1932, 124 Cal.App. 147, 153, 12 P.2d 47. Constructive notice is defined by section 19 of the Civil Code as that knowledge of circumstances 'sufficient to put a prudent man upon inquiry as to a particular fact' where 'by prosecuting such inquiry, he might have learned such fact.' The rules governing constructive notice require reasonable diligence in making inspections for the discovery of unsafe or defective conditions. Laurenzi v. Vranizan, 1945, supra, 25 Cal.2d at pages 811, 812, pages 636, 637 of 155 P.2d ; Nicholson v. City of Los Angeles, 1936, 5 Cal.2d 361, 364, 365, 54 P.2d 725.'

In Maddern v. City and County of San Francisco, 74 Cal.App.2d 742, at page 752 169 P.2d 425, at page 432 (hearing denied), the court said:

'While it is true, as argued by defendant, that in practically all of the cases cited, a longer time than four or five days elapsed between the first evidence of a defect and the accident, we believe it is likewise true that there is no hard and fast rule as to the amount of time that must elapse before a court or jury will be justified in holding that a defendant had constructive notice of the dangerous and defective condition. What amounts to 'long continued neglect,' 'a considerable length of time' or 'an unreasonable length of time' are matters which must be determined in accordance with all the facts and circumstances of the particular case under consideration. What might be 'long continued neglect' or 'an unreasonable length of time' in one case might not be so in another, and we believe that under the authorities the true rule for an appellate tribunal to follow is that when reasonable minds may differ regarding the question as to whether defective conditions have existed for a sufficient length of time under the particular circumstances of a case to charge a municipality with constructive knowledge thereof, the conclusion of the jury in that regard may not be interfered with on appeal.'

Appellant cites Nicholson v. City of Los Angeles, 5 Cal.2d 361, 54 P.2d 725, and Whiting v. National City, 9 Cal.2d 163, 69 P.2d 990, in support of the contention that the county did not have notice of the defective condition. It was stated in the syllabus of the Nicholson case that 'While a minor defect in a sidewalk may be dangerous to travel, it does not, by its mere existence, charge the city with constructive notice of its presence; and assuming that a finding of a dangerous and defective condition would be supported by evidence that there was a break in the sidewalk, with a difference in grade at the break of an inch and a half, such evidence will not support a finding that defendant had constructive notice of such condition for several months where there is no attempt to charge the city with actual notice and merely a showing that the defect had existed for several months,' and 'Where a city is charged with constructive notice of the defective or dangerous condition of a sidewalk on the basis of a duty to inspect, it must be made to appear that a reasonable inspection would have disclosed the defect or dangerous condition, that is, that had there been no neglect of duty there would have been actual knowledge on the part of the city officers a sufficient time before the accident to give reasonable opportunity to guard against it.'

Respondent distinguishes these cases upon the ground that minor defects were involved, whereas in the present case the evidence shows substantial defects. The court states in Eastlick v. City of Los Angeles, 29 Cal.2d 661, 673, 177 P.2d 558, 566, 170 A.L.R. 225: 'The cases 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, have no application here in relation to the establishment of defendant's liability, where it cannot be said that the break in the sidewalk was a minor or trivial defect as a matter of law. [Cases.]'

In support of their contention that under the facts of the instant case the appellant county had actual notice of the defects, respondents cite Hook v. City of Sacramento, 118 Cal.App. 547, at page 553, 5 P.2d 643, at page 645, where the court said:

'Mrs. Meredith testified that the hole or depression had existed in the same condition since September or October, 1929. The accident happened on December 6, 1929. Having made inspections each month, Hageman must have seen the hole. It is inconceivable that a man engaged in examining and inspecting streets and sidewalks would overlook a defect 18 inches to 2 feet long. Therefore, sufficient evidence was shown that appellant had actual knowledge of the...