De La Rosa v. City of San Bernardino

• Decision Date: 16 April 1971
• Citation: 94 Cal.Rptr. 175,16 Cal.App.3d 739
• Court: California Court of Appeals Court of Appeals
• Parties: Margaret R. DE LA ROSA et al., Plaintiffs and Appellants, v. CITY OF SAN BERNARDINO, Defendant and Respondent. Civ. 10039.

Page 175

94 Cal.Rptr. 175

16 Cal.App.3d 739

Margaret R. DE LA ROSA et al., Plaintiffs and Appellants, v. CITY OF SAN BERNARDINO, Defendant and Respondent.

Civ. 10039.

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

April 16, 1971.

Sprague & Milligan and G. Keith Sprague, San Bernardino, for plaintiffs and appellants.

Stockdale, Peckham, Estes & Bruggeman and George Bruggeman, Jr., San Bernardino, for defendant and respondent.

OPINION

TAMURA, Associate Justice.

This is a personal injury action against the City of San Bernardino (City) for injuries allegedly sustained by plaintiffs in a two-car intersection collision. Plaintiffs sued the City on the theory that the accident was proximately caused by a hazardous condition existing at the intersection. After both sides rested the court granted a defense motion for a directed verdict. Plaintiffs appeal from the judgment entered on the directed verdict.

On this appeal defendant's principal argument in support of the directed verdict is that plaintiffs' proof failed, as a matter of law, to establish the existence of a dangerous condition. In addition, defendant argues (a) that under the evidence it was entitled to the benefit of the 'design or plan' immunity of section 830.6 of the Government Code and (b) that by virtue of section 835.4(b) of the Government Code, the county was absolved of liability because the City had taken action to protect the public against risk of injury created by a dangerous condition, if it existed, and that the precautionary measure so taken was reasonable. ¹

A directed verdict is proper only when, disregarding conflicting evidence and giving plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn therefrom in plaintiff's favor, it can be said that there is no evidence of sufficient substantiality to support a plaintiff's verdict. (Taylor v. Centennial Bowl, Inc., 65 Cal.2d 114, 120--121, 52 Cal.Rptr. 561, 416 P.2d 793; Sokolow v. City of Hope, 41 Cal.2d 668, 670, 262 P.2d 841.) Phrased differently, a directed verdict may be sustained only when it can be said as a matter of law that no other conclusion is deducible from the evidence and that any other verdict would be so lacking in evidentiary support that the trial or appellate court would be compelled to set it aside as a matter of law. (Spillman v. City etc. of San Francisco, 252 Cal.App.2d 782, 786, 60 Cal.Rptr. 809; Scott v. John E. Branagh & Son, 234 Cal.App.2d 435, 437, 44 Cal.Rptr. 384.)

The evidence pertinent to the issues raised on this appeal may be summarized as follows:

About 3:00 a.m. on December 11, 1966, plaintiffs (Ruben De La Rosa, ² his wife Margaret, and Trinidad Caldera) were in a vehicle, southbound on Pepper Street in the City of San Bernardino en route to the De La Rosas' home in Colton. Mr. De La Rosa was driving. Pepper Street intersects with Rialto Avenue within the City of San Bernardino. Pepper Street was controlled by stop signs; there were no stop signs on Rialto. The De La Rosa vehicle collided in the intersection with a vehicle westbound on Rialto driven by a Mr. Stansell. Mr. De La Rosa testified he did not see the stop sign or the warning signs preceding it and entered the intersection without stopping. Both vehicles were travelling approximately 35 miles per hour which was within the posted speed limit. There was no evidence of intoxication on the part of either driver.

Both Pepper Street and Rialto Avenue are two-lane paved streets. However, from a point about 88 feet north of the intersection the southbound side of Pepper Street has been widened to provide an additional lane for right turns onto Rialto. At the time of the accident a single stop sign located off the pavement on the northwest corner of the intersection controlled southbound traffic on Pepper. A white limit line with the word 'Stop' had been painted across the southbound lane of Pepper at its entrance to the intersection. A railroad track crossed Pepper Street about 640 feet north of the intersection. A 'Stop Ahead' sign was posted off the west edge of Pepper about 450 feet north of the intersection, and about 400 feet north of the intersection the legend, 'Stop Ahead,' was painted across the southbound lane.

There was a large 30 foot high walnut tree off the west edge of Pepper Street about 30 feet north of the point where the street widened for the added right turn lane at Rialto. The tree had been there since 1937. North of the walnut tree along the west edge of Pepper there was a row of shrubbery. The intersection was illuminated by a street light at the northwest corner of the intersection. The light was mounted on an extension from a 30 foot pole.

Mr. Stansell, who had resided in the area for many years, testified the walnut tree and the shrubbery along the west edge of Pepper obstructed a southbound driver's view of the stop sign at Rialto. He testified there was very little visibility of the sign during the day and at night it could not be seen at all because by the time the driver reached a point where the sign was no longer obscured, the headlight beams would be beyond the stop sign. Conflicting inferences could be drawn respecting the legibility of the 'Stop Ahead' pavement warning sign north of the intersection. There was evidence that the sign had been repainted in 1961. Mr. Stansell indicated that it was 'dim.' Mr. Wirts, City Traffic Engineer, testified that it was the practice to 'refresh' such signs once a year but he was unable to produce the record showing the last time the sign had been repainted.

Mr. Herkelrath, a City employee who resides near the northwest corner of the intersection, testified there had been numerous accidents at the intersection involving vehicles travelling south on Pepper, that he had seen numerous vehicles failing to stop, and that at night he often heard screeching of brakes at the intersection. He complained to the City traffic department of the excessive number of accidents at the intersection stating that 'there seemed to be some reason why people were going through the stop sign.' He registered his complaint before the accident with Mr. Wirts' predecessor and, according to his recollection, also before the accident, with Mr. Wirts. In his deposition Mr. Wirts testified Mr. Herkelrath complained to him in the summer of 1966 (months before the accident) but at trial stated his deposition was incorrect and that he did not receive the complaint until after the accident.

The defense called Mr. Wirts who testified he had driven through the intersection going south on Pepper Street during the daytime on routine inspections and noted nothing unsafe about the intersection. He testified the right turn lane on Pepper was constructed in 1957 in accordance with a plan and design approved by his predecessor on May 24, 1957 (Defendant's Exhibit 'E'). He also testified concerning a 'Job Request' dated September 8, 1961 (Defendant's Exhibit 'D') for certain work at or near the intersection. The latter included the installation of 'paddle markers' and a 'Pavement Narrows' sign immediately to the south of the railroad crossing on Pepper, the repainting of the 'Stop Ahead' pavement warning on the southbound lane of Pepper, and the painting of a double yellow center line on Pepper from the railroad crossing to the intersection at Rialto. Mr. Wirts did not know whether the stop sign located at the northwest corner of the intersection was the same one which was in place in 1961. For the limited purpose of impeaching Mr. Wirts' testimony that the intersection was not dangerous, plaintiff was permitted to show that subsequent to the accident the City installed an additional stop sign out in the street between the right turn lane and the normal southbound lane of Pepper.

The defense also called Mr. Severy, a research engineer employed by the University of California at Los Angeles. Mr. Severy testified he viewed the intersection and its environs and found that the stop sign was visible at a distance of from 110 to 120 feet from the intersection and that a motorist travelling at 35 miles per hour would be able to stop well within that distance. In his opinion the location of the stop sign did not constitute a dangerous condition.

I

Defendant contends that the evidence established, as a matter of law, the nonexistence of a dangerous condition at the intersection. The contention is without substance.

A 'dangerous condition' as defined by statute is a condition 'that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.' (Govt.Code, § 830.) The existence of a dangerous condition is usually a question of fact and may be resolved as a question of law only if reasonable minds can come to but one conclusion. (Govt.Code, § 830.2; Gray v. Brinkerhoff, 41 Cal.2d 180, 183, 258 P.2d 834; Bakity v. County of Riverside, 12 Cal.App.3d 24, 30, 90 Cal.Rptr. 541, and cases there cited.) In the instant case there was considerable evidence from which the jury could reasonably have found the existence of a dangerous condition.

There was evidence that the walnut tree and shrubbery on the west side of Pepper impaired the visibility of the stop sign to such an extent that it was barely visible during the day and could not be seen by a southbound motorist at night; there was evidence of numerous accidents at the intersection involving vehicles travelling south on Pepper; there was evidence from which it could be reasonably inferred that the 'Stop Ahead' legend on the pavement was faded. Although the evidence indicated that the walnut tree and shrubbery were growing on adjacent property, it could reasonably be inferred from the evidence that their proximity to the highway and intersection exposed motorists to a...