Ervin v. City of Los Angeles

• Decision Date: 14 April 1953
• Citation: 117 Cal.App.2d 303,256 P.2d 25
• Court: California Court of Appeals Court of Appeals
• Parties: ERVIN v. CITY OF LOS ANGELES. Civ. 19100.

Page 25

256 P.2d 25

117 Cal.App.2d 303

ERVIN v. CITY OF LOS ANGELES.

Civ. 19100.

District Court of Appeal, Second District, Division 1, California.

April 14, 1953.

Rehearing Denied May 4, 1953.

Hearing Denied June 11, 1953.

Ray L. Chesebro, City Atty., Bourke Jones, Asst. City Atty., Joseph N. Owen, Deputy City Atty., and Weldon L. Weber, Deputy City Atty., for appellant.

Betts, Ely & Loomis, by Forrest A. Betts, Los Angeles, for respondent.

WHITE, Presiding Justice.

Defendant City of Los Angeles appeals from a judgment entered upon a verdict in favor of plaintiff who was injured by a falling boulevard stop sign located on the southeast corner of Hollywood Boulevard and Sycamore Avenue in said city. The action is predicated upon the Pulic Liability Act of 1923, formerly Statutes 1923, page 675, § 2, now Government Code, §§ 53050 and 53051.

The boulevard stop sign in question was a redwood post about 4"' X 4"' in girth and approximately 8 feet high. It was embedded in the concrete of the sidewalk on the southeast corner of the aforesaid intersection. A 24 inch octagonal metal sign was attached to the top of the post with the word 'stop' printed in black letters on its face.

On November 12, 1948, at about 4:00 P.M., plaintiff walked west on the south side of Hollywood Boulevard to a point on the southeast corner of the intersection of the aforesaid streets. As she was about to step down on to Sycamore Avenue the traffic stop sign embedded in the sidewalk on that corner fell upon and injured her very seriously.

The cause proceeded to trial before a jury resulting in a verdict for plaintiff in the sum of $37,774.50. Defendant's motions for nonsuit and a directed verdict were denied, as was its motion for a new trial. This appeal from the judgment followed.

Appellant city strenuously insists that the record is barren of any evidence to bring home to it a neglect of its duty of inspection or knowledge of facts which would have put it upon inquiry, Nicholson v. City of Los Angeles, 5 Cal.2d 361, 367, 368, 54 P.2d 725. That the record fails to disclose any showing that the city possessed either actual or constructive notice of a dangerous condition in respect to the stop sign above referred to. And, that the record is bereft of any evidence showing the lapse of a reasonable time within which the city could have remedied the defect had it possessed such knowledge.

Respondent, on the other hand, contends that the record discloses evidence that the sign post had been damaged for quite some time (9 or 10 months) prior to the happening of the accident, and that the damage had left approximately one-half of the pole cracked or fractured prior to the time it fell upon her. That the photographic pictures of the post revealed an indentation several inches above the fracture line, and that from these pictures the jury could conclude that the indentation had been painted over at some time prior to the date of the accident. That the conclusion naturally follows that the employee of the city who last painted the post had actual knowledge of the damage thereto, or at least, that the jury was entitled to conclude that the city employees 'whose duty it was, according to the testimony of the defendant in this case, to report defects to the post, had such knowledge of the damage as to create constructive knowledge in the defendant City of the defect and of the danger which necessarily would be incident to a half broken post, carrying at its upper end a very heavy metallic boulevard stop sign'.

The post in question was not produced at the trial. To explain its disappearance, defendant city offered the testimony of Maynard Trebil, a senior paint foreman in its employ, who testified that there are thousands of these signs throughout the city; that Walter A. Hudson, a paint foreman, brought the sign into the city shop where there was attached to it a white tag giving the location of the stop sign and marked 'hold'; that he had the post in his possession in the sign room for nine or ten months after the accident; that he had twenty or thirty people working around the warehouse and from time to time more people came; that some of them were not too well educated and could hardly read. That when in February, 1951, he was asked to produce the post, he made a thorough search for it, but was unable to locate it and did not know what happened to it.

Since the post could not be produced, the parties, jury and trial court were forced to rely entirely upon oral testimony and photographs for proof as to whether it was maintained in a defective condition occasioned by an old fracture of the post.

It is axiomatic that on appeal, all legitimate and reasonable inferences must be indulged toward upholding the findings or verdict of the trier of facts. If there be any reasonable doubt as to the sufficiency of the evidence to sustain the findings or verdict, appellate courts should resolve that doubt in favor of such findings or verdict. And, in searching the record and exploring the inferences which may arise from what is found there, to discover whether such doubt or conflict exists, the court should be realistic and practical, In re Estate of Bristol, 23 Cal.2d 221, 223, 143 P.2d 689.

Having in mind the foregoing principles and remembering that it is the contention of appellant city herein that as a matter of law, no prima facie case was presented, viewing the factual situation in a light most favorable to respondent as we are required to do, we cannot hold that as a matter of law, appellant city possessed neither actual nor constructive notice of the existence of a dangerous condition in respect to the stop sign or that there was no lapse of a reasonable time within which appellant city could have remedied the defect had it possessed such knowledge.

There is in the record direct testimony that the sign post had been struck by an automobile 9 or 10 months prior to the happening of the accident here in question. This would support the conclusion by the jury that the indentation, which is established by the pictures of the post, possibly occurred some 9 or 10 months prior to November 12, 1948. While the jury might have concluded that the testimony of the witness who testified as aforesaid was weakened under the force of cross-examination and could have rejected it, nevertheless, the verdict would indicate that they accepted the testimony, as was their right in the capacity of triers of fact. An employee of appellant city testified that on February 17th and 18th, 1948, he was at the intersection in question and painted the post involved in the accident.

Another witness testified that she was walking easterly on the south side of Hollywood Boulevard and when 'about 4 or 5 doors' beyond the corner she heard a scream, turned and saw respondent lying on the sidewalk. This witness went immediately to the aid of respondent and with reference to the appearance of the sign post, testified that the break therein was 'a dull, jagged break instead of perhaps long splinters'. That about one-half of the bottom of the post stump appeared to be 'sort of weathered--dull in color'. Police Officer McDonald, a witness called on behalf of appellant city, was asked on cross-examination:

'Q. (By Mr. Betts, counsel for respondent): Did you make any observation whatever of that post above the black line for the purpose of determining whether or not there were old indentations or other marks of applied force to the post? A. Yes, I did.

'Q. Were there any? A. Yes, there were.

'Q. Can you describe them to us, Mr. McDonald? A. As I recall it, above the fracture on the post there was an indentation and also a discoloration that appeared to be the soot from the exhaust of a car.' (Emphasis added.)

Another witness, Fred L. Wilke, testified that because of his business of 'handling loans on construction jobs for most of my life', and checking upon such jobs, he was familiar with wood. He saw the post on the evening of the accident and again on the next day. The witness testified that the portion of the post in the ground protruded possibly 6 or 8 inches, and from his examination, 'it showed a definite fracture * * *'. He was then asked:

'Q. (By Mr. Betts): Well, can you describe the color of it? A. It appeared on one side of it to be darker in color than the other, and on one portion of the post in the ground it looked like a fresh break, fresh wood, like fresh wood would appear if you snap a piece of lumber. (Emphasis added.)

'Q. Fresh wood? A. Yes, like a fresh break.

'Q. And on the other side? A. On the other side it was discolored quite dark.'

Stanley McDonald, a witness called on behalf of respondent, testified that he was a lumber man of 31 years' experience and that he had become familiar with redwood used for boulevard stop signs. Because the post in question had been lost as heretofore noted, neither end of the fractured portion thereof was available so that the jury might themselves determine whether or not the fracture was a visible one before it was painted over.

Over objection, this witness answered the following question:

'Q. May I ask you then this question--assuming that you had such a post and that it was placed in a cement sidewalk installation, such as the sidewalk here, and assume that it was painted with the regular black and white paint stripes, and that it had a portion at the bottom of it which would appear to me to be about 18 inches or two feet which was black; in other words, the stripes run down to a black solid portion at the bottom. A. Yes.

'Q. Now, assuming that you had such a post, and assume that at some time there was an accident in which the post was struck on the side so as to leave an indentation such as appears on the right-hand side of this post as we look at it, and several inches above the broken-off portion, and assume, however, that that blow did not knock the post down but assume that it did fracture and shatter...