Kotronakis v. City and County of San Francisco

• Decision Date: 29 May 1961
• Citation: 13 Cal.Rptr. 709,192 Cal.App.2d 624
• Court: California Court of Appeals Court of Appeals
• Parties: George KOTRONAKIS, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Defendant and Appellant. Civ. 19038.

Page 709

13 Cal.Rptr. 709

192 Cal.App.2d 624

George KOTRONAKIS, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Defendant and Appellant.

Civ. 19038.

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

May 29, 1961.

Dion R. Holm, City Atty. of the City and County of San Francisco, John J. Taheny, Jr., Deputy City Atty., San Francisco, for appellant.

Stanley P. Makay, San Francisco, for respondent.

DUNIWAY, Justice.

The City and County of San Francisco appeals from a judgment against it, rendered upon the verdict of a jury in an action for personal injuries, and from an order allowing plaintiff costs and an order denying the city's motion to tax costs. The case was submitted to the jury upon two theories; one, that plaintiff was a passenger on the city's Municipal Railway, a common carrier (see Civ.Code, § 2100), and two, that plaintiff could recover under the Public Liability Act. Gov.Code, § 53051.

The city asserts that the evidence is insufficient to sustain the verdict and judgment against it on either theory. It also asserts error in allowing costs and refusing to tax costs. We conclude that the evidence is not sufficient to sustain the verdict and judgment. Since the judgment must be reversed, the matter of trial costs will be set at large, being merely incidental to the judgment. Purdy v. Johnson, 100 Cal.App. 416, 420-421, 280 P. 181; Estate of Williams, 110 Cal.App.2d 50, 52, 242 P.2d 26. It is therefore unnecessary to consider the award of costs below.

1. The evidence was insufficient to sustain the verdict on the theory of the city's liability as a common carrier.

The Facts.

The claim being that the evidence is insufficient, we must examine it in the light most favorable to respondent, who prevailed below. If there is any substantial evidence, contradicted or not, to sustain the verdict, appellant must fail. Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183.

At about 7:00 o'clock on the morning of Monday, September 16, 1957, as was his custom, respondent purchased food for his lunch at the Cosmopolitan Market, on Third Street in San Francisco. He began walking north from there, a point some 120 feet south from the corner of the building at Third and Folsom Streets, toward that corner. He was looking for a No. 15 bus, which would be coming south on Third. As he approached the corner there was on his right an area extending some 90 feet south from the corner, along the curb, marked on the pavement as a bus stop. There was a southbound bus across the intersection approaching the north side of Folsom, but too far away for him to see its number. He walked to a point between 10 and 26 feet south of the corner of the building, and saw the number of the bus, which was a No. 15. At that point, he stepped on a puddle of vomit on the sidewalk, near the curb, and fell, sustaining injuries. The bus was then either crossing or about to cross Folsom, and immediately after his fall pulled into the bus stop and picked up two passengers. It then pulled away. There is no evidence that respondent signalled to the driver, or that he otherwise signified a desire to board the bus. He was at a point somewhat closer to the corner than that at which one would normally be to board the bus. There is no evidence that the bus driver knew that he desired to board. Respondent testified that the front door of the bus, through which passengers board, stopped opposite to where he was lying.

The Law.

The city urges that, at the time of the accident, respondent had not yet become a passenger, citing such cases as Hildebrant v. City and County of San Francisco, 69 Cal.App. 590, 231 P. 1008, and Lagomarsino v. Market Street Ry. Co., 69 Cal.App.2d 388, 395-396, 158 P.2d 982. See also Sanchez v. Pacific Auto Stages, 116 Cal.App. 392, 396, 2 P.2d 845, and Grier v. Ferrant, 62 Cal.App.2d 306, 144 P.2d 631. While we think that its contention is probably correct, we prefer to rest our ruling on another ground.

Here, at the time of his fall, respondent intended to board the bus, but certainly had not commenced to do so. He was on a public sidewalk, along with other members of the public, and that sidewalk was not a part of the municipal railway, even to the extent that a railroad station platform is a part of the railroad. We do not think that it would be proper to impose upon the municipal railway in its capacity as a common carrier, any duty to maintain the city's sidewalks in a safe condition merely because patrons of the line board and alight from its buses on the sidewalk. Two cases, while not precisely in point, are persuasive.

In Choquette v. Key System Transit Co., 118 Cal.App. 643, 5 P.2d 921, 924, the court had to decide whether a street car stop was the equivalent of a station in two different contexts. The court's first inquiry was whether the 'station exception' to the 'stop, look and listen' rule applied to street car stops; the other problem discussed was whether the street car company was negligent in not warning the plaintiff of the approach of a train which crossed her path of departure from the street car. In each instance the court concluded that the street car stop was not equivalent to a 'station,' stating with respect to the first inquiry: "The general rule just considered that in the case of a carrier having exclusive control of its tracks and stations one traveling may still retain the status of a passenger after alighting from the carrier's vehicle, is from the nature of things not applicable to carriers not so situated, as, for instance, persons traveling on street railway cars. While a passenger attempting to alight from a street car remains a passenger until he has accomplished the act of alighting in safety, and the carrier owes to the passenger attempting to alight that very high degree of care and attention which the law puts upon it generally to the end of promoting the safety of its passengers, and will be liable for negligent injury to the passenger while so alighting, it is the generally accepted view that one who has alighted from a street car and is in safety upon the highway is no longer a passenger, but is thenceforth a traveler upon the highway and subject to all the duties and obligations imposed upon such travelers, and the railway company is not responsible to him as a carrier for the condition of the street or for his safe passage from the car to the sidewalk." 118 Cal.App. at page 653, 5 P.2d at page 925.

Regarding the second inquiry, the court said: '* * * 'Courts have differentiated between the duties of a street car company to its passengers and a commercial railway in so far as a duty rests upon them to furnish safe passage to and from a car. From the nature of things a street car company cannot discharge those duties with respect to passengers. It has no control over the streets or traffic upon the streets; it has no stations or platforms and can erect none upon the street. From the curb to the car is a public place open to travel by all, and over it the company has no control or jurisdiction.'' 118 Cal.App. at page 655, 5 P.2d at page 926

In Northrup v. Pacific Elec. Ry. Co., 8 Cal.App.2d 189, 193, 47 P.2d 365, the plaintiff was hit by a negligently driven automobile while waiting for a street car in the defendant's "Street Car Stop." The court quoted much of the foregoing language from Choquette and then stated: 'Under the circumstances of this case the plaintiff did not yet sustain to the company the relation of passenger. He was a pedestrian upon the highway to whom all other travelers owed a reciprocal duty of reasonable care. But the company did not own him the duty of anticipating that strangers over whom it had no control would be guilty of negligence which would result in plaintiff's injuries upon a street over which it had no control, but with which plaintiff was as familiar with conditions as the company; * * *'

While both Choquette and Northrup are distinguishable from the instant case, the basic distinction which they draw between railroad stations and street car stops is well founded. As appellant most cogently points out: '* * * The duty whose violation is charged must be one imposed because the city is a common carrier. Consequently, if such a duty as that contended for by plaintiff exists it is one which is imposed on every common carrier. In other words, it is plaintiff's contention that it is the duty of all the taxicab companies who have hundreds of curb taxi stands in San Francisco and the duty of various interurban bus companies, such as Greyhound and Key System, who load and unload passengers at numberous curb bus zones, to clean and maintain the public sidewalks traversed by persons who occupy the status occupied by plaintiff at the time of his fall. * * *'

The result might be different if the city had, by stopping the bus next to some obvious hazard, forced plaintiff to negotiate the hazard in boarding the bus, but that is not this case.

2. The evidence is insufficient to sustain the verdict under the Public Liability Act.

The Facts.

On this question, the evidence is as follows: On the morning in question there were three or four spots of vomit on the sidewalk in the area where respondent fell. One was 'big.' There were more around the corner, on Folsom. When respondent had been there in the past, the sidewalk 'was clean, clean.' 'Sometimes they keep them clean, sometimes anybody can see many many dirts around there.' Another witness had seen the same condition (vomit and bottles) there 'many times,' not otherwise fixed, before. However, he did not see such a condition the day before (Sunday). Vomit occurs in some other places on Third Street. Vomit and empty bottles are frequently on the sidewalk in front of the Cosmopolitan Market early in the morning. A witness had seen similar things at unspecified times 'from Folsom down to Harrison [1 block], down to Bryant [2...