Hession v. City and County of San Francisco

• Decision Date: 19 January 1954
• Docket Number: No. 15396,15396
• Parties: HESSION v. CITY AND COUNTY OF SAN FRANCISCO. Civ.
• Court: California Court of Appeals Court of Appeals

Page 542

265 P.2d 542

122 Cal.App.2d 592

HESSION v. CITY AND COUNTY OF SAN FRANCISCO.

Civ. No. 15396.

District Court of Appeal, First District, Division 2, California.

Jan. 19, 1954.

Rehearing Denied Feb. 18, 1954.

Hearing Denied March 17, 1954.

Dion R. Holm, City Atty. of City and County of San Francisco, George E. Baglin, Deputy City Atty., San Francisco, for appellant.

Hoberg & Finger, San Francisco, for respondent.

KAUFMAN, Justice.

The court granted a rehearing in this case to give further consideration to appellant's contention that the jury was improperly instructed as to proximate cause and that the trial court gave an erroneous instruction which brought about the exoneration of the codefendant, Western Pacific Railway.

Here the dangerous condition of the wire had existed for many years. There was a clear duty under the law requiring the city to maintain the wires at a height of 22 feet above the street. Whether this violation of the statute on the part of the city was a proximate cause of respondent's injury was for the jury to determine. The jury was properly instructed as to the proximate cause by the trial court and returned a verdict against the city. This verdict is therefore supported by both the law and the evidence.

Appellant's contention that the trial court gave an erroneous instruction which brought about the exoneration of the codefendant, Western Pacific Railway, is answered in the case of Sullivan v. City and County of San Francisco, 95 Cal.App.2d 745, 214 P.2d 82, 88. The court there said in part, 'The City, as a joint tort feasor, has no legal right to complain that another joint tort feasor was improperly exonerated from liability, there being no right of contribution between joint tort feasors. * * * Under the facts if the City was negligent, and the evidence is overwhelming that it was, such negligence, as a matter of law, was at least a concurrent cause. This being so, even if the nonsuit as to the driver and owners of the truck was erroneously granted the City was not prejudiced, since one joint tort feasor has no legal cause for complaint if another tort feasor is relieved of liability, even erroneously, there being no right of contribution between them.'

Since appellant in its petition for rehearing did not question the accuracy of the recital of the specific facts in our opinion previously filed, nor our conclusion that its negligence was clearly established, we adopt our previous opinion as follows:

'This is an action for personal injuries. When, on December 16, 1948, plaintiff as a member of a switching crew of the Western Pacific Railroad Company, hereinafter called the company, was riding on top of a box car which was being moved along a spur track across the intersection of Potrero Avenue and Alameda Street in San Francisco, his face struck against a wire of the street railway operated there at that time by the City and County of San Francisco, hereinafter called the city. He sued the city because of negligence in the maintenance, control and operation of the wires at too low a level above the spur track, and the company because of negligent failure to provide him with a safe place to work and to warn him of the danger caused by said wires. Recovery against the company was sought under the Federal Employer's Liability Act against the city under the general law. After motions of defendants for directed verdicts had been denied the jury returned a verdict for the company but one against the city for $7,500. The city appeals. No appeal was taken from the judgment in favor of the company.

'At the intersection Alameda Street runs east and west, Potrero Avenue north and south. The municipal trolley cars ran on Potrero Avenue. The single spur track runs on Alameda Street in a westerly direction to the intersection and curves diagonally over the intersection to a warehouse at the southwest corner of the intersection. Approximately where the trolley tracks cross the spur track the two trolley wires, which provided the electric force for the trolleys, were supported by a set of two span wires both suspended from the same two poles located near the east and west curbs of Potrero Avenue. According to the scale map of the intersection (Plaintiff's Exh. 5) these poles were approximately 80 feet apart.

'It is conceded by the city in its opening brief that respondent while on top of a box car which was being slowly pulled out of aforesaid warehouse across Potrero Avenue hit his nose against one of the wires of the municipal trolleys. It is there further conceded that under the General Orders of the Public Utilities Commission--formerly Railway Commission--Nos. 26, 26B, 26C, 26D, which constituted at least a standard of the care required, Polk v. City of Los Angeles, 26 Cal.2d 519, 542, 159 P.2d 931, the trolley wires should have been maintained with a minimum clearance of 22 feet above the railway tracks and that a lesser clearance would constitute a defective condition. No contention of contributory negligence of plaintiff is presented on appeal. Additional facts will be stated in connection with the assignments of error to which they pertain.

'Appellant's first contention is that the motion for a directed verdict should have been granted because plaintiff had failed to prove that a defective condition of the wires existed at the time of the accident and for such a period before the accident that the city in the exercise of ordinary care should have discovered and corrected it. The contention is without merit. The evidence supporting the verdict in this respect is as follows: The principal witness, Brown, at the time of the accident a foreman and since February, 1949, general foreman of the line department of the Municipal Railway, testified to the effect that the wire system at the intersection was originally installed in 1913-1914, that in 1934-1935, when Potrero Avenue was widened, the State of California had the poles and wires reconstructed by a contractor, after which there were no other major changes before the date of the accident. Four days after the accident the witness measured the trolley wires (the wires which carry the electricity) at the intersection and found that the south-bound (western) trolley wire was 19 feet 10 inches, the north-bound (eastern) trolley wire 20 feet above the spur tracks. At the time of the trial he measured the spots where the supporting span wires had been attached to the poles and found that at the western pole the attachment had been 23 feet 10 inches, at the eastern pole 24 feet 4 inches from the ground. A span wire hung from one pole to another loops down in the conter and a span of 50 or 60 feet will come down 2 or 3 feet or more. The trolley wires are suspended from the span wires and hang 2 or 3 inches under them. Between spans a trolley wire normally sags 9 or 10 inches. The witness knew and had in his possession the Public Utilities Commission's General Order No. 26D, which was in effect in December, 1948. He worked with it all the time. He was familiar with its provision which for wires required a minimum clearing of 23 feet 6 inches above steam railroad tracks, and also with an earlier General Order, 26B, in effect at the time of the reconstruction in 1935, which required a minimum clearance of 22 feet. He was one of the people responsible for the lines being at the proper height. He had never measured the wires at the intersection prior to December 20, 1948, had made no inspection to datermine whether they were not maintained contrary to the law and to his knowledge nobody else connected with the Municipal Railway had at any time made such inspection. The distance of only 20 feet above the railroad track did not comply with the order of the Public Utility Commission and was not safe so far as a man on top of a car was concerned. (Witness said on top of a street car but obviously meant on top of a railway car.) The city did not introduce any evidence which tended to contradict or rebut any part of Brown's testimony. There was furthermore a stipulation that the running board on top of the box car on which plaintiff was at the time of the accident was 14 feet 6 inches above the railroad tracks. Plaintiff was 6 feet 2 inches tall.

'From the above evidence the jury could infer that the low level of the trolley wires found by Brown four days after the accident had existed at the time of the accident and long before that, since the reconstruction in 1935. The height at which the span wires were attached to the poles, 23 feet 10 inches at the western pole, 24 feet 4 inches at the eastern pole, combined with the evidence that such span wires loop down strongly (2 or 3 feet or more at a width of 40 or 60 feet, whereas here the width was 80 feet) and that the trolley wires are still a few inches lower, permitted the jury to draw the inference that from the time at which the span wires were installed on the poles (in 1935) the trolley wires had been down as low as they were found to be after the accident, 19 feet 10 inches for the western trolley wire, 20 feet for the eastern one. These levels leave only clearances of 5 feet 6 inches and 6 feet 8 inches above the running board on which plaintiff was standing, whereas plaintiff is 6 feet 2 inches, circumstances which fully explain the accident which happened.

'Appellant is the less in a position to attack the inference that the low level of the trolley wires had existed since their installation, because the city itself expressly took said position at the trial. In his opening statement its attorney said in part: 'The evidence will show that the trolley wires and the span wires * * * are high there, 20 feet above the ground, and the evidence will further show that there was no sagging of the wires, that is the way the wires are constructed back in 1914, and there had been no change in all that time, there had been no sagging.' Although 'back in 1914' evidently was a...