Hinton v. State

• Decision Date: 20 April 1954
• Court: California Court of Appeals Court of Appeals
• Parties: HINTON v. STATE et al. Civ. 15827.

Page 154

269 P.2d 154

124 Cal.App.2d 622

HINTON v. STATE et al.

Civ. 15827.

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

April 20, 1954.

Bronson, Bronson & McKinnon, San Francisco, for appellant.

Howard Magee and Philander B. Beadle, San Francisco, for respondent.

BRAY, Justice.

After a judgment against him in the sum of $10,000 and the denials of motions for judgment notwithstanding the verdict and for new trial, defendant Richardson (apparently the only defendant served with process) appeals.

Questions Presented.

1. Sufficiency of the evidence to show that the push-button traffic signal control device was defective or dangerous.

2. Was plaintiff's injury the direct and proximate result of such condition?

Facts.

The action is brought pursuant to section 1953, Government Code, against a state officer for injuries received from alleged defective or dangerous condition of public property. Defendant is Superintendent of Electrical and Signal Maintenance of the Division of Highways, State of California, and as such in supervision of the signal device in question. At the southwest corner of El Camino Real and Santa Cruz Avenue in Menlo Park, there is installed, in addition to the common traffic-actuated signal there, a push-button signal device. The traffic-actuated signal is operated by the vehicular traffic approaching El Camino going east along Santa Cruz, tripping the timing device. Thereafter the green signal goes on for that traffic for about 10 seconds. The push-button device is erected on a pole and is for the use and protection of pedestrians. When the button is pressed and the green signal comes on a pedestrian has 24 seconds to cross El Camino. It takes about 22 seconds to do so. It is undisputed that the 10 second interval is insufficient to enable a pedestrian to complete his crossing before the signals controlling northbound and southbound traffic on El Camino would invite the movement of that traffic through the intersection by displaying a green light. Normally there is on the pole about 4 1/2 feet above the sidewalk an instruction sign about 4 inches in width and 7 inches in height. This is attached by two screws. This sign is readily visible to pedestrians. The plate is painted white and in easily read black lettering states 'To cross the street push button and wait for green light.' El Camino is 84 feet wide from curb to curb but the distance by the crosswalk is 90 feet. One Kemper, under defendant's supervision, was required to maintain, among others, the signals at this intersection. Included in his duties is the determination of whether the instruction signs are in position and to replace them if missing. There was a set schedule of inspections at least once a week and probably oftener because there was a great deal of trouble due to 'kids stealing the signs.' Sometimes two or three will be missing at a time and sometimes none missing for two or three months. The signs can be removed with a screwdriver. There was considerable conflict in the evidence as to when the sign was last inspected. There was evidence that the last inspection was 7 days before the accident. Plaintiff testified that about two weeks before the accident she passed the pole and saw no sign on it, and saw none at the time of the accident. Four days thereafter defendant found that the sign was gone. Plaintiff testified that she did not know there was such a thing as a push-button type of signal. She had never crossed El Camino here before. As the sign was missing she was uninformed as to the necessity for pushing the button. As she reached the southwest corner she saw no sign on the pole. She did see the traffic signal across the street on the southeast corner. It was dusk, the lights were on the cars, but it was not dark. When the light across the street showed green she started to cross El Camino. As the push-button had not been pressed she had only 10 seconds to cross. When she had reached just beyond the dividing strip at the center of the street, the light in front of her changed to yellow and almost immediately became red. At this instant there was a car stopped at the crosswalk in the first lane beyond the dividing strip. Plaintiff hesitated in front of this car. Its driver motioned to her to go on. She could see no other cars coming. Just as she cleared this car, another one just beyond which approached the intersection on the green light for El Camino, struck her, badly injuring her.

1. Sufficiency of the Evidence.

Defendant contends that the evidence is not sufficient to show that she sign was missing at the time of the accident. Taking the evidence and the reasonable inferences therefrom most strongly in favor of plaintiff, the evidence was sufficient. It shows that the sign had not been inspected for at least 7 days; that it and similar signs were frequently removed by children; that two weeks before when she passed the pole plaintiff did not see it there; that it was not there 4 days after the accident; and most important of all, although plaintiff looked at the pole twice the evening of the accident she did not see the sign. Such matters as the fact that she was not specially looking for a sign as she did not know there was a push-button device, had never crossed this intersection before (although she had been near the pole once before), and that it was dusk on the evening in question, were matters for the jury to take into consideration in weighing her testimony, but do not compel a finding against her. Defendant's criticism of negative evidence is not justified by the authorities. '* * * the weight to be given to negative testimony often arises in railroad and other accident cases where it is claimed that signals were not given, and * * * in such cases, the question is purely for the jury, and it has frequently been held that negative evidence of this character is sufficient to sustain a verdict (Jones on Evidence [Horowitz], § 893, p. 400), even though it conflict with other evidence to the effect that a warning was actually given.' Keena v. United Railroads of San Francisco, 197 Cal. 148, 154, 239 P. 1061, 1063. See also Rogers v. City of Los Angeles, 6 Cal.App.2d 294, 44 P.2d 465, and Thompson v. Los Angeles etc. R. Co., 165 Cal. 748, 134 P. 709 (failure to hear signals claimed to have been given); Takahashi v. White Truck etc. Co., 15 Cal.App.2d 107, 59 P.2d 161, and O'Neal v. Kelly Pipe Co., 76 Cal.App.2d 577, 173 P.2d 685 (absence of lights). 'Courts have often been asked to exclude testimony based on what may be called negative knowledge, i. e. testimony that a fact did not occur, founded on the witness' failure to hear or see a fact which he would supposedly have heard or seen if it had occurred. Yet there is no inherent weakness in this kind of knowledge. It rests on the same data of the senses. It may even sometimes be stronger than affirmative impressions. The only requirement is that the witness should have been so situated that in the ordinary course of events he would have heard or seen the fact had it occurred. This sort of testimony is constantly received,--particularly in proof of the failure to give railroad signals, the loss of a chattel, the absence of a witness, the non-existence of a fictitious person, the non-payment of money, and other negative facts.' II Wigmore on Evidence, 3rd ed., § 664, p. 778.

2. Direct and Proximate Result.

Section 1953, Government Code, requires that the injury be a direct as well as a proximate result of the dangerous or defective condition. While there are cases, Sivertson v. City of Moorhead, 119 Minn. 467, 138 N.W. 674, 675; Missouri, K. & T. Ry. Co. of Texas v. Lyons, Tex.Civ.App., 53 S.W. 96, 97; King v. City of St. Louis, Mo.Sup., 157 S.W. 498, 501; Godwin v. Atlantic Coast Line R. Co., 120 Ga. 747, 48 S.E. 139, 141; Texas & P. R. Co. v. Coutourie, 2 Cir., 135 F. 465, 473; Davis v. Spicer, 27 Mo.App. 279, 301; Lovett v. City of Chicago, 35 Ill.App. 570, 571, holding that the words 'direct' and 'proximate' in the phrase 'direct and proximate cause' are synonymous, we doubt that such construction can be given to the phrase in section 1953. We must assume that the Legislature intended the one to mean something different from the other. In Osborne v. Imperial Irr. Dist., 8 Cal.App.2d 622, 47 P.2d 798, it was pointed out concerning the predecessor of section 1953, Gen. Laws, Act 5618, Stats.1919, p. 756, that the statute imposing liability on a public offcer increased the burden of showing the negligence required in the ordinary case as it 'increases this burden on a plaintiff by particularly requiring proof that the injury occurred as a direct result of the dangerous condition * * *.' 8 Cal.App.2d at page 629-630, 47 P.2d at page 801, emphasis added; see also Moore v. Burton, 75 Cal.App. 395, 400, 242 P. 902. Defendant contends that the absence of the instructional sign was not a direct cause of plaintiff's injury, because, he contends, the car which struck her was an independent intervening cause. Both parties accept the definition of 'direct cause' in Anderson v. Steinle, 289 Ill.App. 167, 6 N.E.2d 879, 881: 'The phrase 'direct cause' has been held to mean, 'the active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source,' Lynn Gas & Electric Co. v. Meriden Fire Ins. Co., 158 Mass. 570, 33 N.E. 690, 691, 20 L.R.A. 297, 35 Am.St.Rep. 540; and in Tuff v. Waman, 5 C.B. (N.S.) 573, it is said: 'The direct cause of an injury is one without which the injury would not have happened.''

Prosser on Torts, p. 347, in discussing 'Direct Causation,' states: 'In dealing with this problem, many courts and writers have made a distinction, easier of comprehension than of any exact definition, between consequences which may be regarded as caused 'directly' by the defendant's act, and those which...