Lewis v. Contra Costa County

• Decision Date: 11 January 1955
• Citation: 278 P.2d 756,130 Cal.App.2d 176
• Parties: Mervin A. LEWIS, Plaintiff and Appellant, v. COUNTY OF CONTRA COSTA, a political subdivision of the State of California; Earl Smith, an individual doing business under the fictitious name of Earl Smith Development Organization, Defendants and Respondents. Civ. 16175.
• Court: California Court of Appeals Court of Appeals

Page 756

278 P.2d 756

130 Cal.App.2d 176

Mervin A. LEWIS, Plaintiff and Appellant, v. COUNTY OF CONTRA COSTA, a political subdivision of the State of California; Earl Smith, an individual doing business under the fictitious name of Earl Smith Development Organization, Defendants and Respondents.

Civ. 16175.

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

Jan. 11, 1955.

Russell F. King, Richmond, for appellant.

Carlson, Collins, Gordon & Bold and John Ormasa, Richmond, for respondent Contra Costa County.

Hagar, Crosby, Rosson & Vendt, Oakland, Lewis E. Lercara, Oakland, of counsel, for respondent Earl Smith.

FRED B. WOOD, Justice.

Plaintiff was injured when, in crossing a public highway, he jumped over a mud filled gutter onto a mud covered sidewalk, slipped and fell.

He joined Earl Smith and the County of Contra Costa as defendants: Smith because, allegedly, excavations on his nearby land loosened the soil which was carried down to and onto the sidewalk and highway by the surface run-off whenever it rained; the county, because it allegedly suffered the alleged nuisance on Smith's land to continue unabated and failed to remedy a dangerous and defective condition in the highway.

Verdict was for the defendants and plaintiff has appealed. He claims insufficiency of the evidence, error in the admission of evidence, and error in the giving and refusing of instructions.

(1) The evidence amply supports the verdict, viewed either as a case of assumption of risk or of contributory negligence.

Plaintiff, a mail carrier of many years' experience, was delivering mail afoot. He had been 'zigzagging' back and forth across the highway in making deliveries. ¹ He had been proceeding in this fashion along Canyon Road for some distance without difficulty until, at his next crossing (not at a street intersection; it was in the middle of a block), he encountered an area where wet mud filled the gutter and covered the sidewalk along the front of 3 or 4 fifty-foot lots. Instead of going around this area he jumped across the gutter onto the sidewalk, skidded and fell. He admitted that he knew he was jumping on mud and knew the mud would be slippery.

(2) Was it prejudicially erroneous to admit evidence that at the time of the accident plaintiff had accumulated sufficient sick leave to cover the period of his disablement?

It was error to admit this evidence over plaintiff's objection. The general principle is that damages recoverable by an injured party can not be reduced in the amount of payments for his loss from a source wholly independent of the wrongdoer. Thus, in Gersick v. Shilling, 97 Cal.App.2d 641, 649-650, 218 P.2d 583, it was held error to elicit from plaintiff the information that her hospital bills had been paid by the Blue Cross and that she had drawn $460 from the United States Employment Service for disability. In Anheuser-Busch, Inc., v. Starley, 28 Cal.2d 347, 170 P.2d 448, 166 A.L.R. 198, plaintiff sued a person whose car allegedly collided with the truck of a common carrier and injured property of the plaintiff which was being transported by the carrier. The fact that the carrier had compensated plaintiff for its loss was no defense to the action. The court stated the rule and added '[t]he rule has been applied where the independent source is pension systems or charity.' 28 Cal.2d at page 349, 170 P.2d at page 450. That rule seems especially applicable here. Plaintiff used up his accumulated sick leave. In a very real sense of the term it is as if he had drawn upon his savings account in an amount equal to his salary during the period of his disablement.

But this error was not prejudicial. The verdict clearly indicates that the jury found there was no liability and did not reach the point of fixing the amount of damages sustained.

Plaintiff contends that this evidence operated as an 'unfair attack' upon his 'credibility' as a witness 'because the jury might infer he was attempting to recover twice for the same injury.' We fail to see the logic of such an argument. The evidence had no tendency to impeach his own description of the accident and the surrounding circumstances.

(3) Was the giving of certain erroneous instructions on the assumption of risk prejudicial? The instructions on assumption of risk were not limited to the situation in which a person having actual knowledge of a dangerous condition voluntarily exposes himself to that danger but extended to a person who 'in the exercise of ordinary care would know' that the danger exists. ² The quoted portion has been disapproved in Hayes v. Richfield Oil Corp., 38 Cal.2d 375, 384-385, 240 P.2d 580, 585, and in Prescott v. Ralph's Grocery Co., 42 Cal.2d 158, 161-162, 265 P.2d 904, holding that there must be actual knowledge or its equivalent.

This error, however, was not prejudicial. The facts demonstrate that plaintiff actually knew or must have known of the hazard. He testified that he knew of the presence of mud in the gutter and on the sidewalk and that the mud was slippery. Yet, instead of going beyond the point of hazard or of retracing his steps a mere 100 feet or so to the point where he had last crossed the street without difficulty, he took a chance and jumped, with the untoward results already narrated. In explanation, he says he did not at the time know how thick the mud on the sidewalk was (there is evidence it was an inch thick), suggesting that in the absence of such knowledge he was not fully aware of the hazard. We do not see the logic of that argument. He was thoroughly aware that the mud covered the sidewalk and that it was slippery. That would seem sufficient to put any adult person upon actual notice of the hazard. 'Where the facts are such that the plaintiff must have had knowledge of the hazard, the situation is equivalent to actual knowledge * * *.' Hayes v. Richfield Oil Corp., supra, 38 Cal.2d 375, 385, 240 P.2d 580, 585, and Prescott v Ralph's Grocery Co., supra, 42 Cal.2d 158, 162, 265 P.2d 904. As to the type of risks 'which any one of adult age must be taken to appreciate,' s...