Johnson v. City of San Leandro

• Decision Date: 18 April 1960
• Citation: 4 Cal.Rptr. 404,179 Cal.App.2d 794
• Parties: Mathilde H. JOHNSON, Plaintiff and Appellant, v. CITY OF SAN LEANDRO, a Municipal Corporation, et al., Defendants and Respondents. Civ. 18665.
• Court: California Court of Appeals Court of Appeals

Page 404

4 Cal.Rptr. 404

179 Cal.App.2d 794

Mathilde H. JOHNSON, Plaintiff and Appellant, v. CITY OF SAN LEANDRO, a Municipal Corporation, et al., Defendants and Respondents.

Civ. 18665.

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

April 18, 1960.

J. Adrian Palmquist, Patricia J. Smith, Oakland, John P. Briegleb, Hayward, Francis T. Cornish, Berkeley, for appellant.

Appelbaum, Mitchell & Bennett, by Bryant M. Bennett, Hagar, Crosby & Rosson, David C. Rust, Oakland, for respondents.

GOOD, Justice pro tem.

Plaintiff appeals from a judgment of nonsuit entered in favor of defendant City of San Leandro and defendant J. W. Lee, a paving contractor, sued herein as First Doe. This was an action for injuries allegedly sustained as the consequence of a fall when plaintiff stumbled at a point in the 136th Avenue crosswalk at East 14th Street in San Leandro. She contends that she tripped over a rise in the new black-topping at 136th Avenue as it projects across the crosswalk. Defendant city contracted with Lee to resurface said avenue westerly from East 14th Street with a new layer of black-top one and one-half inches high covering only the old black-top portion of the street leaving a strip of old concrete pavement one and one-half feet wide along the side of 136th Avenue to a point some 30 feet westerly of the west line of East 14th then widening as it rounds the corner into 14th Street. The curb line is a sweeping curve. The crosswalk is eight feet wide. Its westerly line (on the Avenue side) traverses 11 feet before reaching the new black-topping. Its easterly line (on the Street side), because of the curved curb, traverses over 20 feet before reaching the black-top. As a result of the repaving, a difference in elevation variously estimated at 1 1/16th to 1 3/4ths inches existed between the surfaces of the concrete apron and the new black-topping in its projection of some 6 feet into the crosswalk. Its termination (paralleling the west line of East 14th and some 2 feet westerly thereof) was feathered or tapered to virtually zero elevation.

The contract incorporated portions of the standard specifications for resurfacing of the State Department of Public Works, Division of Highways. So far as disclosed by the record the only portion thereof material to the issues of this case is the provision requiring that the 'connection to existing surfacing shall be feathered out to conform with the requirements for smoothness.' The only direct testimony as to the application of this provision is that the section refers only to the termination of a new surface at its union with old surfaces and not to the side lines of the new surface. The sides were not feathered but bevelled or compacted. The city concedes that there was a difference in elevation as aforesaid and that if this constituted a 'dangerous condition' it had notice thereof. During construction the city had an inspector present at all times who examined the work during its progress. The work was completed on November 1, 1955 and accepted by the city on November 21, 1955.

The accident occurred on February 23, 1956, while still daylight and with streets dry. Plaintiff testified that she was familiar with the area; that she was walking south on East 14th and as she stepped down off the curb to cross 136th she 'tripped over this, these pebbles that are on the edge of the street'; that when she hit her 'toe on this, on these pebbles that are along the street there on this curb or on the rise in the pavement' she stumbled, took four or five running steps trying to keep her balance and fell. On cross-examination she admitted that at her deposition she had theretofore testified that she had taken about one step off the curb, then three to five running steps before falling. Her doctor's case history notes read: 'Fall yesterday. Stepped on a pebble * * *.' She attempted to explain her deposition as a mistake that she was unaware of until she went back to the scene to look at the curb. In her words, in response to a question about the one step off the curb, she said, 'Well I was asked that and thinking it was like any other curb, which you do take one step--' Defense counsel interrupted as did the court, which asked if it was correct that she took one step off the curb. She replied, 'No, I didn't. I took more than one.' In a later portion of cross-examination she also maintained that she did not stumble until after taking a couple of steps.

While plaintiff presented no witnesses who actually saw her fall, a woman who was crossing the street ahead of plaintiff did testify that she had not reached the sidewalk on the other side when she heard a noise and turned around to see plaintiff lying on the street close to her. Another witness who assisted plaintiff did not see the actual fall but placed her prone position in the street as approximately perpendicular to a manhole that, on the plat exhibit, appears to be about 10 1/2 feet in from the edge of the balck-top. The symbols that the reporter's transcript discloses were used to designate his marking on the exhibit fail to appear thereon. However the reference to the manhole is clear and definitely places the location of the fall at a minimum of 10 1/2 feet into the black-top from the rise in question. Another marking on the exhibit (an open circle) appears to place the point perpendicular to the manhole but 3 to 5 feet further into black-top.

Both defendants contend that there is no evidence that the rise in the pavement was the proximate cause of the fall. The testimony in that regard has been summarized above. Defendants argue in support of their contention that it cannot be inferred from plaintiff's testimony that she stumbled or tripped over the rise in the pavement because (a) if she was but one step off the curb when she stumbled, the rise being 11 feet minimum distant from the curb could not have caused the stumble; (b) her testimony as to stumbling on 'a pebble' or 'these pebbles' implies that she stumbled on loose pebbles and not on the rise in the black-top; and (c) her failure to herself specifically locate the point of her fall entitles defendants to application of section 2061(7) of the Code of Civil Procedure. While these arguments are not unreasonable, they are predicated upon an adverse view and stringent interpretation of the testimony of plaintiff, and depend upon a resolution of contradictions and inconsistencies that, serious though they may be, nevertheless remains a jury question. For reasons stated below an adverse resolution is not compelled as a matter of law. A judgment of nonsuit may be affirmed only if, disregarding conflicting evidence and indulging all legitimate inferences in favor of plaintiff, there is still no evidence sufficiently substantial to support a verdict for plaintiff. Blumberg v. M. & T., Incorporated, 34 Cal.2d 226, 229, 209 P.2d 1; Wulfjen v. Dolton, 24 Cal.2d 878, 880, 151 P.2d 840.

Defendant's first supporting argument is predicated upon the conflict of plaintiff's trial testimony with her deposition and the statement in her medical history, discounting her attempted explanation. The resolution of conflicting testimony and weight to be given to inconsistencies, if any, in the testimony of a party are the exclusive province of a jury. An excellent discussion of principle is found in Lasry v. Lederman, 147 Cal.App.2d 480, at pages 488-489, 305 P.2d 663, at pages 667-668. It is obvious that if the initial stumble occurred on plaintiff's first step from the curb, the rise in the black-top could not have been...