Opinion
8-7-1952
BARRETT v. CITY OF CLAREMONT. * Civ. 19075.
Moss, Lyon & Dunn, Sidney A. Moss, and Henry F. Walker, Los Angeles, for appellant. Knight, Gitelson, Ashton & Hagenbaugh, Los Angeles, for respondent.
BARRETT
v.
CITY OF CLAREMONT.
Moss, Lyon & Dunn, Sidney A. Moss, and Henry F. Walker, Los Angeles, for appellant.
Knight, Gitelson, Ashton & Hagenbaugh, Los Angeles, for respondent.
VALLEE, Justice.
Appeal by defendant city from a judgment for plaintiff entered on a verdict in an action for damages for personal injuries under the Public Liability Act of 1923.
In 1938 the city of Claremont constructed a sidewalk on Yale Street. Expansion joints, about one-half inch in width, were left between the slabs of concrete running across the width of the sidewalk in which a filler of asphaltic, tarry material was placed. The expansion joints and the filler act as a cushion between the concrete slabs. Standard practice in inserting the filler material is to pour it into the joint to a point at least one-quarter or one-half an inch below the surface of the concrete. The filler in the expansion joint involved here was flush with the sidewalk at the time of installation. On June 18, 1948, the filler material in one of the expansion joints protruded one-half inch above the surface of the sidewalk, was four or five inches wide along most of its length, and extended the width of the sidewalk. The asphaltic, tarry filler absorbs the rays of the sun, and on the day of the accident the temperature of the material was in excess of 160 degrees. At that temperature it becomes soft and sticky. The summer heat expands the concrete, squeezing the filler up. It does not become fluid enough to go back into the joint, so its tendency is always to keep working out.
On June 18, 1948, about 3:00 p. m., plaintiff, while walking along the sidewalk, caught her toe in the soft and sticky filler material and fell. The Superintendent of Streets of Claremont, who had charge of the repair of sidewalks, testified he knew the condition of the sidewalk from about 1940 and that the filler material at the expansion joint at which the accident occurred had been in substantially the same condition from that time to the day of the accident. It appears from photographs in evidence that the filler material in other expansion joints in the vicinity of the one where the accident occurred did not protrude above the surface of the sidewalk.
The Public Liability Act of 1923 provides that a municipality shall be liable for injuries to persons resulting from the dangerous or defective condition of public streets in all cases where the officer or person having authority to remedy such condition, had knowledge or notice of the defective or dangerous condition of any such street, and failed or neglected, for a reasonable time after acquiring such knowledge or receiving such notice, to remedy such condition, or failed and neglected for a reasonable time after acquiring such knowledge or receiving such notice to take such action as may be reasonably necessary to protect the public against such defective or dangerous condition.
The assignments or error are: 1) the evidence fails to establish any dangerous or defective condition, and 2) the court erred in sustaining plaintiff's objection to evidence offered by defendant that the city records disclose no claim had ever been filed because of injuries sustained by any person other than plaintiff at this particular expansion joint, and that no report of a claimed defective condition at this joint had ever been made. The argument is that we must hold as a matter of law that the condition of the filler material was a minor or trivial defect, which precludes recovery. The contention cannot be sustained.
Nicholson v. City of Los Angeles, 5 Cal.2d 361, 54 P.2d 725, 726, held that a crack in one of the panels of a sidewalk which caused one block to tilt up so that there was a difference in elevation 'at the break of not more, and possibly less, than an inch and a half', was a minor or trivial defect. Whiting v. National City, 9 Cal.2d 163, 69 P.2d 990, held that a defect which consisted of a difference in elevation of about three-quarters of an inch in a sidewalk was a minor or trivial defect. Balmer v. City of Beverly Hills, 22 Cal.App.2d 529, 71 P.2d 854, held that an elevation of one inch between one portion of a sidewalk and an adjoining portion was a minor or trivial defect. Robson v. Union Pacific R. R. Co., 70 Cal.App.2d 759, 161 P.2d 821, held that a depression two inches in diameter, one-quarter inch deep, and about one inch wide at its deepest point in a tile block was a minor or trivial defect. Claremont presses these cases on us in support of its contention that the defect in the sidewalk which caused plaintiff to fall was a minor or trivial one as a matter of law, and that, therefore, plaintiff cannot recover.
There are many decisions holding that defects of a similar character were not minor or trivial. Hook v. City of Sacramento, 118 Cal.App. 547, 5 P.2d 643, 644, held that a depression in the apron of a sidewalk 'between 18 inches and 2 feet long, and as wide as her foot and an inch to an inch and one-half deep' was not a minor or trivial defect. Barrett v. City of Sacramento, 128 Cal.App. 708, 18 P.2d 356, held that a broken area in a sidewalk about twelve inches across and about three-eighths of an inch deep was not a minor or trivial defect. Ackers v. City of Los Angeles, 40 Cal.App.2d 50, 104 P.2d 399, held that a depression in a sidewalk 'about twelve inches long, about three inches wide and about two inches deep' was not a minor or trivial defect. Balkwill v. City of Stockton, 50 Cal.App.2d 661, 123 P.2d 596, held that a hole in a concrete sidewalk four and five-eighths inches long, two inches wide and one-half inch deep was not a minor or trivial defect. In Sheldon v. City of Los Angeles, 55 Cal.App.2d 690, 131 P.2d 874, it was held that an elevation from a maximum of one and one-half inches at one end to one-third of an inch at about the middle to nothing at the other end, caused by the settling of a sidewalk, was not a minor or trivial defect. Owen v. City of Los Angeles, 82 Cal.App.2d 933, 187 P.2d 860, 862, held that a hole in the pavement near the curb 'from two to three and one third inches deep, about four to six inches wide, and from nine to eleven inches in length' was not a minor or trivial defect. In Warren v. City of Los Angeles, 91 Cal.App.2d 678, 205 P.2d 719, 720, the plaintiff 'stepped on a fan shaped wet spot about 2 feet wide and 3 feet long, the narrow end of which was toward the curb. This wet spot consisted of grease and water. The heel of his shoe came in contact with it and he slipped and fell on his side with the result that he suffered personal injuries. For two or three months prior to and at the time of the accident there was a hole in the street, approximately 10 inches by 10 inches and 2 inches deep containing water and oil. The wet spot on the sidewalk upon which plaintiff fell was caused by automobiles passing over the hole in the street and causing the fluid collected therein to splash onto the sidewalk.' The defect in the street was held not to be a minor or trivial one.
These cases point up the fact that no hard and fast rule can be laid down as to the character or extent of a condition in a sidewalk which will constitute a defective or dangerous condition for which liability will ensue, but each case must stand on its own particular facts. Fackrell v. City of San Diego, 26 Cal.2d 196, 206, 157 P.2d 625, 158 A.L.R. 773; Ackers v. City of Los Angeles, 40 Cal.App.2d 50, 52, 104 P.2d 399. In the Fackrell case the court declared, 26 Cal.2d at page 206, 157 P.2d at page 630, 'Whether a given set of circumstances creates a dangerous or defective condition is primarily a question of fact.' In Owen v. City of Los Angeles, 82 Cal.App.2d 933, at page 938, 187 P.2d 860 at page 863, we said: 'The question, on appeal, whether a condition is defective or dangerous is one which calls for the application of the rule that where there is room for difference of opinion among reasonable minds, the question is one of fact.'
In the present case there was not only an elevation of one-half an inch above the surface of the sidewalk, but, in addition, an accumulation of the asphaltic, tarry, sticky substance along the entire width of the sidewalk which, to the knowledge of Claremont, had existed for a number of years, and which sticky substance stuck to the toe of plaintiff's shoe as she was walking along and caused her to be thrown 'flat.' The cases relied on by Claremont are not applicable to the facts of the present case. In Louie v. Hagstrom's Food Stores, 81 Cal.App.2d 601, 184 P.2d 708, the plaintiff slipped on an egg-shaped puddle of thick, slippery, sticky syrup, which was about six to eight inches in size, and fell to the concrete floor. The question of negligence was held to be a question of fact and liability was imposed. In the case at bar different conclusions may reasonably be drawn regarding the defective or dangerous condition of the sidewalk. Whether the condition constituted a defective or dangerous condition, and whether Claremont had knowledge or notice of the defective or dangerous character of the condition, were therefore questions of fact for the jury and not of law. Warren v. City of Los Angeles, 91 Cal.App.2d 678, 680, 205 P.2d 719.
The court did not err in sustaining plaintiff's objection to Claremont's offer of proof. The evidence offered was not only that the records of Claremont would disclose that no claim had ever been filed because of injuries sustained at the expansion joint at which plaintiff was injured and would show that no report of a claimed defective condition at this joint had ever been made, but the offer also included, as an inseparable part thereof, that Claremont's records 'would not reveal any evidence of any report having been made of an accident occurring in any of the expansion joints in the city streets in Claremont between 1940 and 1948,' except the claim of plaintiff. The evidence was offered on the question whether Claremont 'ever had actual notice of any other claims on any of these joints.' Counsel for Claremont admitted below that 'Claremont, had notice that the tarry substance [at the point where the accident occurred] extended approximately one-quarter inch to one-half inch above the surface of the sidewalk.'
It is doubtful whether evidence of the absence of prior accidents at the point where the accident in question occurred, is admissible, Murphy v. County of Lake, 106 Cal.App.2d 61, 65, 234 P.2d 712, a point we need not decide. The fact, if it be a fact, that accidents had not occurred at other expansion joints, was immaterial and inadmissible without a further showing that the conditions were substantially similar. Murphy v. County of Lake, supra, 106 Cal.App.2d 65, 234 P.2d 712. It is well settled that when evidence is offered as a whole and part of it is inadmissible, the whole is properly rejected. Bostwick v. Mahoney, 73 Cal. 238, 14 P. 832; People v. Hogan, 11 Cal.App. 599, 603, 105 P. 938. Since the offer to prove the absence of prior accidents at the expansion joint at which plaintiff was injured was integrated with and a part of the offer to prove the absence of accidents at all other expansion joints in Claremont, the entire offer was properly rejected.
No ground for reversal is shown.
Affirmed.
SHINN, P. J., and WOOD, J., concur. --------------- * Subsequent opinion 256 P.2d 977. 1 2 Deering's Gen.Laws, Act 5619, now Gov.Code sections 53050-53056.