Gallipo v. City of Long Beach

Citation304 P.2d 106,146 Cal.App.2d 520
CourtCalifornia Court of Appeals
Decision Date03 December 1956
PartiesDaniel Claude GALLIPO, a minor, by Claude W. Gallipo, his guardian ad litem, Plaintiff and Appellant, v. CITY OF LONG BEACH, a municipal corporation, et al., Defendants and Respondents. Civ. 21970.

Simpson, Wise & Kilpatrick, George E. Wise, and Adrian Kuyer, Long Beach, for appellant.

Walhfred Jacobson, City Atty., Long Beach, John R. Nimocks, Deputy City Atty., Long Beach, for respondent City of Long Beach.

FOX, Justice.

Plaintiff appeals from a judgment of nonsuit in an action filed under the Public Liability Act, Gov't Code, § 53051 et seq. The action was brought on behalf of a minor to recover for damages sustained as the result of a fall from a bridge owned, operated and maintained by the defendant city.

The issue involved is whether the bridge and an attached pipeline constituted a dangerous or defective condition of which the City had notice. The amended complaint charged the defendant knew that the structure was a menace within the Act by reason of its construction, state of repair, narrowness, lack of safeguards, and the absence of pedestrian crossings.

The accident here involved occurred on the California Avenue bridge, which was constructed prior to 1913 by the Pacific Electric Railway over the tracks of its right of way. Outside the railing of the bridge, on the west side, is a gas pipe and supporting structural members. The defendant city has operated and maintained the bridge and its appurtenances since 1924. The roadway portion of the bridge, which is approximately 20 feet wide, constitutes a two-lane arterial street used by north-south vehicular traffic, and carries several thousand vehicles daily. It appears that this is the only bridge in Long Beach upon which there is no provision for a pedestrian walkway. The north approach is within the city of Signal Hill.

The photographs in evidence and the testimony disclose the following physical features at the scene of the accident: The vehicular highway is a paved street which narrows down at the bridge entrance. The bridge spans a railroad right of way, with a drop of about 25 feet to the ground below at its highest point. There is a wooden railing on each side of the vehicular portion of the bridge. The roadway approaching the bridge has no sidewalks, nor is there any pedestrian passageway along the bridge. Adjacent to the lower railing on the west side of the bridge, and running parallel to and almost horizontal with it over the railroad right of way, is a pipeline about one foot in diameter. This pipeline, which is just outside the bridge railing, is attached to the bridge by a supporting structure, a part of which consists of two horizontal planks, one on each side of the pipe. The plank nearest the roadway extends the full length of the bridge; the outer plank extends from the south end of the bridge northward about three-fourths the length of the bridge. There is no barrier at either end of the approaches to the bridge or pipeline to prevent pedestrians from walking upon the pipeline or the two beams flanking it and attempting to cross over in that manner. The grass alongside the bridge has been flattened and beaten into what appears to be a defined path leading up to the pipeline structure. However, near the center of the bridge and outside the west railing there are two parallel 2"' X 4"' beams about 5 feet apart which connect the bridge and pipeline structure. The beams slant across the pipeline to form an obstacle to passage. They are attached at one end to the outer wooden beam beside the pipeline and at the other near the top of the bridge railing. Several strands of barbed wire were loosely strung between the two boards and dangled over the edges.

Plaintiff is an eight year old boy who had lived for three years one block south of the bridge. He had been advised by his parents not to play on the bridge. For approximately two years before the accident, he had walked along the pipeline to cross the bridge about once or twice a week. He had a 'favorite spot' on the other side of the bridge, where he played with his friends. He did not tell his parents he went up on the pipeline. A couple of times before the accident he had lost his balance while crossing but regained it without mishap. When he came to the loose-ended barbed wire in the center, he put both his feet on the plank closest to the bridge to get by the barrier. He testified 'it was kind of a tight squeeze getting in there underneath those boards.' Plaintiff stated he crossed on the pipeline because he 'had no place to walk on the bridge,' and that, although he sometimes went under the bridge, 'most of the time I went across the pipe.' He had on occasions crossed the bridge roadway when there were no cars. There was no park in the area and the children played around the bridge. Plaintiff testified he always got on the pipeline and beams from the end of the bridge by just walking up and stepping on it.

On the day of the accident, plaintiff was playing near the bridge with three other youngsters, Steve, Bobby and Jay. Plaintiff started to cross along the pipeline structure. He made his way with one leg on each side of the pipe and, in the words of a child witness, 'kind of scooting' along. Bobby, who had just stepped onto the pipeline, observed that as plaintiff attempted to go under the barbed wire, his trousers were caught by the wire and as he reached over to extricate himself, he fell about 25 feet to the ground below. Plaintiff suffered severe head injuries.

Several residents of the neighborhood testified that children were wont to play near the bridge and cross it over the pipeline. There was testimony that the bridge and its environs was a favorite meeting place of various children. One witness thought he recalled that a child was hit by a car on the bridge and killed.

It is not disputed that the bridge and pipeline were essentially in the same condition for many years prior to the accident. As stated in defendant city's brief, 'notice of the condition of the bridge maintained by respondent for some 30 years prior to the accident was not an issue.' There was no evidence that any complaints had been made with reference to any dangerous condition of the bridge.

Mr. Gilkerson, defendant's City Engineer, testified that the bridge in question is the only one in the city upon which no provision had been made for pedestrian crossing. He stated that he had personally seen children on the bridge 'quite frequently,' but not on the pipeline. After testifying that as early as 1915 defendant and the city of Signal Hill had corresponded on the subject of a new bridge, he remarked: 'The pedestrian facilities would no doubt have been discussed in connection with the widening of the vehicular lanes.' Asked whether, at the time of the accident, he regarded the bridge as dangerous or defective for pedestrians, he replied: 'Only to the extent that it was narrow, and it would be necessary or desirable certainly for pedestrians not to attempt to cross with the vehicles.' Also he stated that it would cost just a few hundred dollars to erect a barrier at the approaches to the pipeline structure at each end of the bridge.

James Kincaid testified as director of defendant's Public Service Office, which is responsible for bridge maintenance. His records, available merely from 1951, show that the only expenditure made on the California Avenue bridge was the sum of $11.74 for repair of a railing. He 'presumed' that children crossed the bridge to reach two grammar schools in the vicinity.

Robert Dier, the Traffic Engineer, testified he had discussed with the City Engineer the general desirability of having a new bridge at the location here involved and possibly talked about the need for sidewalks. He testified that 'any modern bridge would have such a sidewalk' and that the lack of a sidewalk 'was one of the reasons I would want a modern bridge at that location.' Asked whether the bridge was a hazard to pedestrians, Mr. Dier responded: 'I would say it would depend on the pedestrians and the motor vehicles approaching, I would say that it might be safe for a person to cross. It would depend on certain conditions and on the actions of both the pedestrian and the motorist.'

At the close of plaintiff's case the trial court granted a motion for nonsuit. Plaintiff appeals from the ensuing judgment.

Plaintiff's counsel makes no attempt to predicate liability through the application of the doctrine of attractive nuisance and asserts he relies entirely on the provisions of the Public Liability Act embodied in section 53051 of the Government Code. 1

A judgment of nonsuit is proper only if, disregarding any conflict in the evidence and according plaintiff's evidence all the value to which it is legally entitled and indulging every legitimate inference which may be drawn from such evidence, the necessary result is a determination that no substantial evidence exists to support a judgment for plaintiff. Aguirre v. City of Los Angeles, 46 Cal.2d 841, 844, 299 P.2d 862. The only question for consideration is whether the evidence adduced would warrant an inference of tort liability against the City within the scope of the statute. To recover against the...

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