MacLean v. City and County of San Francisco

• Decision Date: 27 August 1954
• Docket Number: No. 15916,15916
• Parties: MacLEAN v. CITY AND COUNTY OF SAN FRANCISCO et al.
• Court: California Court of Appeals Court of Appeals

Page 698

273 P.2d 698

127 Cal.App.2d 263

MacLEAN v. CITY AND COUNTY OF SAN FRANCISCO et al.

No. 15916.

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

Aug. 27, 1954.

As Corrected on Denial of Rehearing Sept. 24, 1954.

Hearing Denied Oct. 20, 1954.

Fitz-Gerald Ames, Sr., Harold A. Galloway, San Francisco, for appellant.

Alexander, Bacon & Mundhenk, San Francisco, for Barsotti and another.

Dion R. Holm, City Attorney, George E. Baglin, Deputy City Attn., San Francisco, for City & County of San Francisco.

Dana, Bledsoe & Smith, San Francisco, Wilbur J. Russ, San Francisco, of counsel, for Benny D'Amico.

Bronson, Bronson & McKinnon, San Francisco, for Elio Filippi.

BRAY, Justice.

From judgments in favor of defendants respectively, entered after motions for nonsuit were granted, plaintiff appeals on a settled statement.

The question presented is the sufficiency of the evidence to show negligence upon the part of the respective defendants.

General Facts.

The facts referring to the negligence of the particular defendant will be discussed later, and, as we are required to to in nonsuits, the facts and the reasonable inferences therefrom most strongly in favor of plaintiff will be given. The action is for injuries claimed to have been sustained by plaintiff while getting off a bus operated by defendant City and County of San Francisco. At Scott and Chesnut Streets there is a regular bus loading and unloading zone. At this time it was occupied by another municipal bus. Therefore, plaintiff's bus stopped to unload about 3 or 4 feet to its rear. Due to the presence of a private automobile parked at the curb, the bus could not stop in a position parallel to the curb but clanted in toward the gutter in such manner that the point from which plaintiff alighted was 5 to 8 feet from the curb, thus forcing her to walk that distance to reach the sidewalk. While so doing she slipped upon some slippery, moist substance which had collected in the gutter at that point. She fell to the pavement and sustained serious injuries. The material in the gutter was described variously as slag, stucco, mortar and cement, grayish muck, stucco or plaster underneath and dirt, debris and water on top, white slimy substance, and wet plaster. Up the hill and approximately one block away at the northeast corner of Scott Street and Lombard Street, a building was undergoing alterations. There was testimony that there were no other construction jobs in the vicinity. There was testimony that this white and gray substance was deposited along the edge of the curb on the east side of Scott Street from the point at which it was dumped into the gutter at the building site down to the place of the accident. Near the bus zone there was a concentration of this substance. It was on this substance that plaintiff slipped.

Under the evidence, the jury could have reasonably found that this substance came from the area of the construction work.

The Building Contractors.

(a) The Plasterer.

There were three sets of contractors sued in the action. We will first consider the evidence as relating to defendant D'Amico, to whom the general contractors had subcontracted the plastering work. While the repairs were being made D'Amico and his employees mixed their plaster by the use of both a mixing machine and a mortar box. This box was in the street. It was the custom to clean up the job at the end of each day's work. So far as the mortar box was concerned, this was done by scraping the box dry, putting the material into sacks or pails, then sloshing clean water in the box and dumping the result of this mixture into the gutter. On the afternoon of the accident they mixed stucco in the box and washed the box in the above mentioned fashion. The mixing machine was washed out in the street. It would be allowed to sit for awhile, thus allowing moisture in the mixture to come to the top and would be poured out into the gutter. The remaining material would be put in or under a sack or under a scaffolding. Then water would be hosed into the machine, and after the machine had run for a few minutes, the resultant mixture would be dumped into the gutter. This mixture was grayish in color or light gray. The last plastering performed by D'Amico was on August 15th (the accident occurred August 16th) but stucco was mixed in the mortar box the latter day and it was cleaned and taken from the job. D'Amico's hod carrier and D'Amico testified that the machine was removed from the job four days before the accident. However, the bricklayer's hod carrier testified he saw the machine being cleaned and the contents dumped into the gutter on the 16th. Both D'Amico and his hod carrier testified that the material washed by them into the gutter would completely harden within 12 hours. The exact hour when the washing was done on the 16th does not appear but a reasonable inference is that it was some time during the afternoon, either around 2 or 4 o'clock. The accident occurred about 8 p. m. The jury could reasonably have inferred that the material washed into the gutter with water was still soft at that time. D'Amico's hod carrier testified that the material used the day of the accident was waterproofing cement wash used in 'whitewashing the building.' He also referred to it as a ready mixed mortar which was white. The material on which plaintiff slipped was described as white and gray.

Defendant D'Amico contends that the evidence fails to disclose any negligence upon his part, primarily because there was no evidence of the 'amount or viscosity of any material dumped by the defendant' to show that it would run a distance of some 200 feet to the point of the accident, and that there is no evidence to justify a finding that defendant D'Amico should have foreseen the possibility of injury from his acts. However, as shown, the evidence would justify an inference that a sufficient quantity of the gray and white material from D'Amico's mortar box and machine was washed into the gutter, either alone or with that also washed into the gutter by the bricklaying contractor, as hereafter discussed, to reach the spot where plaintiff slipped, and that such material had not hardened sufficiently as not to cause plaintiff to slip. Certainly a person washing slippery material into the gutter of a city street is presumed to foresee that it will run down hill and may cause trouble to a person rightfully using that portion of the street where the material deposits. As will be discussed later, the court should have permitted plaintiff to introduce certain provisions of the Municipal Code, one of which provisions at least (§ 4104) the jury could have found D'Amico violated. The judgment of nonsuit in favor of D'Amico was improperly granted.

(b) The Bricklayer.

The general contractors sublet the bricklaying work to defendant Filippi. He and his employees mixed their mortar in a mortar box in the street next to the gutter and just uphill from the plasterer's equipment. Customarily the bricklayers cleaned their equipment at the end of the day's work. The mortar box was cleaned by scraping it with a square pointed shovel. If there was too muchmuck it was washed down with a hose but not where it would stain the street. The material he was using was white sand and white cement. Filippi's hod carrier testified that on this job he did not have to use a hose on the mortar box because he did not make enough mortar to bother washing it out. At 2 p. m. he made his last mix. What was left of the mortar in the box he scraped out of the box and put in a bucket. He then put the box in a truck which later took it way. If by some chance he had washed out the box or run water over it, and thrown it in the gutter, it would have been around 3:30 p. m. at the latest, and by 8 o'clock the mortar would be hard and would not form a slippery or slimy substance on the street. The hod carrier did testify that if there was enough mortar in the box he would use a hose and hose out the muck, and that while he very seldom in mixing mortar slopped any material on the street, if he did he would gather up that material and put it in his hod. Differing from the D'Amico situation, there is no testimony that Filippi's employees washed or dumped any material on the street that afternoon. Plaintiff's contention that the jury might have inferred that they did is based entirely upon the fact that some of the material where plaintiff slipped was white and Filippi's mortar was white, plus the fact that on occasions Filippi's hod carrier had hosed some material into the street. However, the white material at the point of the accident is explained by the evidence relating to D'Amico. In the face of the direct testimony to the effect that no mortar came out of the box that day, to conclude that it did would not be indulging in a reasonable inference but in pure guesswork. True, the jury could disregard the Filippi witnesses' testimony as to the small amount of mortar mixed that day and that none was washed into the street. But if it did, there still would be no evidence to the contrary. The judgment of nonsuit in favor of Filippi was properly granted.

(c) The General Contractors.

Defendants Barsotti and Bernardini were the general contractors. There is no contention that they spilled any substance into the street. Their claimed liability is based upon the exception to the general rule that a subcontractor is an independent contractor for whose negligence a general contractor is not responsible, namely, the doctrine of respondeat superior for the negligence of their subcontractors resulting in the creation of a public nuisance in violation of the contractor's nondelegable duty to maintain safe and unobstructed public ways. See Colgrove v. Smith, 102 Cal. 220, 36 P. 411, 27 L.R.A. 590; Luce v. Holloway, 156 Cal. 162, 103 P. 886; Barrabee v. Crescenta Mutual Water Co., 88 Cal.App.2d 192, 198 P.2d 558. These defendants as...