McNeill v. A. Teichert & Son, Inc.

• Citation: 137 Cal.App.2d 5,289 P.2d 595
• Court: California Court of Appeals Court of Appeals
• Decision Date: 15 November 1955
• Parties: Fred McNEILL and Ronald McNeill, a minor, by and through his guardian ad litem Fred McNeill, Plaintiffs and Respondents, v. A. TEICHERT & SON, Inc., a corporation, the City of Sacramento, a Municipal Corporation, Fred Klaus, City Engineer and Superintendent of Streets, and J. Sestonovich, Defendants, A. Teichert & Son, Inc., a corporation, and the City of Sacramento, a Municipal Corporation, Appellants. Civ. 8551.

Page 595

289 P.2d 595

137 Cal.App.2d 5

Fred McNEILL and Ronald McNeill, a minor, by and through his guardian ad litem Fred McNeill, Plaintiffs and Respondents, v. A. TEICHERT & SON, Inc., a corporation, the City of Sacramento, a Municipal Corporation, Fred Klaus, City Engineer and Superintendent of Streets, and J. Sestonovich, Defendants, A. Teichert & Son, Inc., a corporation, and the City of Sacramento, a Municipal Corporation, Appellants.

Civ. 8551.

District Court of Appeal, Third District, California.

Nov. 15, 1955.

Hearing Denied Jan. 5, 1956.

Desmond, McLaughlin & Russell, Sacramento, for A. Teichert.

William A. Sitton, Sacramento, for City of Sacramento.

Richard J. Lawrence, Sacramento, for respondents.

VAN DYKE, Presiding Justice.

The City of Sacramento, herein called the 'city', and A. Teichert & Son, Inc., herein called the 'corporation', appeal from a money judgment entered against both upon a jury verdict in a personal injury action.

The accident which gave rise to the litigation occurred in a residential tract in the City of Sacramento known as 'Tallac Village'. The corporation had been installing storm sewers in the area under a contract awarded to it by the city. In order to lay the necessary pipes, the corporation had dug a ditch 9 feet deep and 3 1/2 feet in width down the center of 25th Avenue from 59th Street for approximately one-half mile. About one month before the accident the pipes had been laid and the ditch backfilled with dirt except for a portion about 25 feet in length in which pipes could not then be laid due to an accumulation of water at that point. Work was halted and the excavation was left unfilled. That condition had existed for about one month before the accident, and during that time no barriers had been erected and maintained about the open ditch save that there was placed at one end of the excavation a sign reading, 'Road Closed'; and there was an embankment composed of the dirt that had been taken from the excavation and piled on the side. Pipes lay along one side of the pile of dirt. The corporation, while it had been engaged in construction work in the area, had requested teachers of adjacent schools and parents living in the area to caution school children of the dangers existing at its construction sites. Plaintiff and respondent Ronald McNeill, who was then 6 1/2 years of age, had been so warned. Prior to the time of the accident, to which there were no eyewitnesses, he had not been near the open segment of ditch, which was two or three blocks distant from his home. However, on the afternoon of the day of the accident, after returning from school and changing his clothes, he was attracted by the pile of dirt and rode his bicycle down to the site. He testified as follows: 'I just saw all the dirt down there and I thought I would ride down, and I rode down there and got scared and fell in.' He further said: 'I just looked in, and then I tried to get away, and then I fell in.' Ronald's father, for himself and as guardian ad litem for his child, brought this action to recover damages for the personal injuries sustained by Ronald and for the recovery of medical and hospital expenses incurred on his behalf. The complaint contained two counts, one against the city and the other against the corporation. Against the city, the plaintiffs alleged that it was a municipal corporation and as such charged with the duty of keeping streets within its borders in safe and suitable condition for use by the public; that Ronald had fallen into the excavation above described at a time when there were no barriers or warning signs placed near it to warn of the condition of the street which it is alleged was at that time dangerous and defective. It was charged that the city and its superintendent of streets had notice and knowledge of the condition and the consequent dangers therefrom in time to remedy said conditions prior to Ronald's fall and that the condition had been left uncorrected. It was alleged that the injuries to Ronald were proximately caused by the dangerous condition of the street. The count against the city also contained allegations that the corporation, as a contractor, had been installing storm sewers pursuant to contract with the city; that a city inspector had been charged with the duty to inspect the work daily; that the contractor was bound by its contract to provide, during the course of its work, and to maintain, in proper location, all necessary signs, barriers, guards, etc., to protect the public; and that the street superintendent and the inspector had been negligent in failing to require the contractor to do so. By a second count a cause of action was stated against the corporation. It was alleged that its acts in leaving open the excavation had been negligent and that this negligence had proximately caused the injuries to Ronald, for which this action was brought.

There was evidence that although cross barriers had been maintained during the progress of the work so that the public could not travel upon the street where the excavation existed, these barriers had been removed when the work was halted and the uncompleted segment of ditch left open; that during the time it was left open, prior to the accident, the public used the street and school children traversed it to and from school. The answers of defendants raised the general issue and pleaded the affirmative defense of contributory negligence on the part of Ronald. The jury returned a verdict of $5,000 for general damages and $515.25 for medical expenses incurred. There is no claim that the verdict is excessive.

Appellants contend that, although the contributory negligence of Ronald was, in view of his tender age, a question of fact for the jury, nevertheless his conduct as a matter of law was the sole cause of the accident and that, therefore, they are not liable for the injuries he suffered. This contention cannot be sustained. On the question of proximate cause, it was for the jury to determine whether or not the condition of the street was a proximate cause of Ronald's injuries. The jury could have reasoned that if barriers had been placed along the side of the ditch they might have so impressed the young child that he would not have gone near to and fallen into the excavation. Hines v. Milosivich, 68 Cal.App.2d 520, 522, 157 P.2d 45. The trial court did not err in submitting the issue of proximate cause to the jury.

Both appellants contend that the court erred in admitting in evidence a city ordinance which was in force and effect at the time of the accident and which reads as follows:

'Any person by whom, or under whose direction, or by whose authority as principal, or as contractor, or employer, any portion of a public street, sidewalk, or alley may be made dangerous, shall erect, and so long as the danger may continue, maintain, around or over the place so made dangerous, a good substantial barrier, or walk which said barrier or walk shall be constructed in such a manner that it shall meet with the approval of the Building Inspector.'

We will treat first of the contention of the corporation that the ordinance was inadmissible in proof of plaintiffs' cause of action against it. This contention cannot be sustained. Appellant argues that the ordinance had not been pleaded and that it had objected to its introduction upon that basis; that the court overruled the objection, expressing the opinion that it appeared to the court it was not necessary to plead the ordinance because it was admissible under the general issue of negligence raised by the pleading. In so ruling the court was correct. We quote the following from Jackson v. Hardy, 70 Cal.App.2d 6, 12, 160 P.2d 161, 164:

'Answering appellants' contention that general negligence was not charged in the complaint, we point out that under our system of pleading, it is unnecessary to plead or refer to a statute relied upon as creating a duty, where the action is one predicated upon the negligence of the defendant and not one to enforce a liability or penalty imposed by statute.'

We also refer to Martin v. Shea, 182 Cal. 130, 137, 187 P. 23, 26, where, in quoting from the case of Cragg v. Los Angeles Trust Co., 154 Cal. 663, 669, 98 P. 1063, the court said:

"The ordinance hereinbefore referred to was not alleged in the complaint, plaintiff simply alleging negligence in the manner we have specified. It is urged that it was necessary to plead the ordinance in order to make it available as evidence and that the trial court therefore erred in admitting it over the objections of defendant. The...