Opinion
Rehearing Granted Jan. 29, 1930
Appeal from Superior Court, Monterey County; Fred A. Treat, Judge.
Action by Agnes I. Brooks, as administratrix of the estate of Egbert William Brooks, deceased, against the City of Monterey. Judgment for defendant, and plaintiff appeals. Reversed. COUNSEL
W.H. Metson and E.B. Mering, both of San Francisco, for appellant.
Argyll Campbell, of Monterey, and J.A. Bardin, of Salinas, for respondent.
OPINION
PER CURIAM
An action by the administratrix of the estate of Egbert William Brooks, deceased, against the city of Monterey to recover damages for the death of the decedent alleged to have been caused by the defective condition of a street within the municipality. A jury returned a verdict for the defendant, and from the judgment entered thereon the plaintiff has appealed.
It is contended that contributory negligence, upon which the defendant relied as one of its defenses, was not pleaded, and also that the defense was not available in the present action; further, that the evidence was insufficient to support the verdict, and that the court erred in certain of its instructions to the jury, and by refusing others asked by the plaintiff.
The city of Monterey is a municipal corporation operating under a freeholders’ charter. The street on which the accident happened is called Reeside street, its northeasterly terminus being at the edge of a declivity about 13 feet in height above the waters of Monterey bay. From this point the street, which is paved and curbed, extends southwesterly for about 4½ blocks. The complaint alleged that from September 16, 1924, until the day of the accident the terminus of the street was unlighted, unguarded, without barriers, signs, notices, or a watchman, by reason of which the street was in a dangerous and defective condition; that during all of said times the city manager, the street superintendent, and the council of the city had knowledge and notice of the condition described, but failed and neglected to remedy the same within a reasonable time after receiving such notice and knowledge. It was further alleged that at about 3 o’clock a.m. on October 11, 1925, the decedent "was traveling in his automobile on said Reeside street and was wholly unaware of said dangerous and defective condition, and was proceeding with due care for his own safety without fault on his part and while so traveling drove over said precipice into the bay of Monterey by reason of said unlighted and unguarded condition of said street and as a result lost his life. ***"
The answer, after denying the existence of the conditions described in the complaint or that the officers of the defendant had notice or knowledge thereof, alleges as a further answer "and as and for a separate and distinct plea of contributory negligence" the following: "That the said Egbert William Brooks was at the time and place alleged in said Third Amended Complaint driving the said automobile upon said Reeside Street, a public highway in said city of Monterey, County of Monterey, State of California, while he was then and there under the influence of intoxicating liquor; that he was driving said automobile at an excessive rate of speed and in a reckless manner, and that said Egbert William Brooks failed to use due care or caution under the circumstances for the protection of himself and said automobile and that said Egbert William Brooks was generally negligent and careless in and about the operation and control of said automobile at said time and place, and so carelessly, negligently and improperly managed said automobile that by reason thereof, defendant is informed and believes, and on such information and belief alleges that said automobile was propelled across said Reeside Avenue to the left hand side of the highway of said Reeside Street in the direction in which said Egbert William Brooks was then and there traveling and across the sidewalk on said left hand side of said Reeside Street and that without any fault on the part of the defendant, and by want of due care in the management of said automobile by said Egbert William Brooks, said automobile was propelled over a precipice into the Bay of Monterey at a point northeasterly of said termination of Reeside Street and thereby said Egbert William Brooks lost his life, which said acts of carelessness and negligence on the part of said Egbert William Brooks proximately contributed to the death of said Egbert William Brooks and to the alleged damages, if any, there were."
In the construction of a pleading for the purpose of determining its effect, its allegations must be liberally construed with a view to substantial justice between the parties. Section 452, Code Civ.Proc.; Estate of Wickersham, 153 Cal. 603, 96 P. 311. It is the rule that contributory negligence, if relied upon as a defense, must be specially pleaded. The facts constituting such negligence must be alleged and must show a causal connection with the injury (Crabbe v. Mammoth Mining Co., 168 Cal. 500, 143 P. 714), but the defense, while in effect a plea in confession and avoidance (Gett v. Pacific Gas & Electric Co., 192 Cal. 621, 221 P. 376), does not require the defendant to confess negligence before setting up the negligence of the plaintiff as a defense (Hoffman v. Southern Pacific Co., 84 Cal.App. 337, 258 P. 397; 29 Cyc. [Pleading] 582; 1 Thompson on Negligence [[[2d Ed.] § 390, p. 375; Elliott on Railroads [3d Ed.] § 2085). Appellant insists, however, that in the absence of a confession of negligence by the defendant the above pleading was but a denial of negligence on its part, and insufficient as a plea of contributory negligence. In this connection stress is laid upon the allegation that "without any fault upon the part of the defendant and by want of due care in the management of said automobile *** said automobile was propelled over a precipice into the Bay of Monterey. ***" It is plain that the averment that the defendant was "without any fault" refers to the management of the automobile, and not to the alleged failure of the defendant to maintain the street in a safe condition. The pleadings stated facts having a causal connection with the injury and which were sufficient within the rule stated in Crabbe v. Mammoth Mining Co., supra, to constitute a plea of contributory negligence. While it has been held that the defense of contributory negligence is not applicable to an action sounding in nuisance (46 Cor.Jur. [Nuisances] § 29, p. 665; Bowman v. Humphrey, 132 Iowa, 234, 109 N.W. 714, 6 L.R.A.[N.S.] 1111, 11 Ann.Cas. 131), it is not claimed that the defendant owned or controlled the land at the foot of the declivity or was in any way responsible for the dangerous condition existing at the terminus of the street other than that it failed to maintain barriers at that point reasonably sufficient to prevent accidents or to light or otherwise guard the same. The statutory definition of a nuisance is: "Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any *** public park, square, street, or highway. ***" Civ.Code, § 3479. And so far as shown, no condition within the above definition was created or maintained by the defendant, plaintiff’s sole ground for complaint being that the defendant, after its officers had notice or knowledge of the condition, neglected to provide barriers or other means reasonably sufficient to prevent injury to those using the street. St.1923, p. 675. That the liability under the above act of a county, municipality, or school district for injuries resulting from the dangerous or defective condition of the public streets, highways, or property, is based upon the negligence of its agents or servants, and that contributory negligence is a defense to such actions, was in effect held in the following cases: Huff v. Compton City School District, 92 Cal.App. 44, 267 P. 918; Gorman v. County of Sacramento, 92 Cal.App. 656, 268 P. 1083; Dawson v. Tulare Union High School District (Cal.App.) 276 P. 424. Moreover, the rule is general that the liability of a municipal corporation for injuries from defects or obstructions in its streets is for negligence only, that it is not an insurer of the safety of travelers, but is required to exercise ordinary care to maintain its streets in a reasonably safe condition for those using them in a proper manner, and that contributory negligence precludes a recovery. 43 Cor.Jur. (Municipal Corporations) § 1785, pp. 998, 999; Laney v. Chesterfield County, 29 S.C. 140, 7 S.E. 56; Bush v. Wathen, 104 Ky. 548, 47 S.W. 599; Quimby v. Woodbury, 63 N.H. 370; Giffen v. City of Lewiston, 6 Idaho, 231, 55 P. 545; Kelley v. Boston, 180 Mass. 233, 62 N.E. 259; McQuillin, Municipal Corporations (2d Ed.) § 2820; Elliott on Roads and Streets (4th Ed.) § 1153.
Evidence was received tending to show that decedent was intoxicated during the evening previous to the accident, and in this connection the plaintiff proposed an instruction stating in substance that if the jury found that the terminus of the street was in a dangerous and defective condition, that it was neither lighted nor guarded in a manner sufficient to warn travelers of its condition, and that one driving thereon and using ordinary care for his own safety would be likely to drive over the precipice, then the fact that the decedent was under the influence of intoxicants at the time of the accident could not be considered as contributory negligence. This instruction was refused. While the intoxication of the decedent was no excuse for negligence on the part of the defendant (Robinson v. Pioche et al., 5 Cal. 461), and it has been held that mere abstraction or lack of attention to the dangerous condition of a public way, even by one intoxicated, cannot be assigned as contributory negligence, nevertheless, evidence of the decedent’s physical or mental condition due to intoxication was relevant to the issue of contributory negligence (Brkljaca v. Ross, 60 Cal.App. 431, 213 P. 290; Baldwin v. Pacific Auto Stages, Inc., 83 Cal.App. 635, 257 P. 130; 45 Cor.Jur. [Negligence] § 551, p. 997), and the court accordingly gave the following instructions, which clearly stated the rule and fully covered the instructions offered by the plaintiff: "The mere fact that one goes upon the highway in an intoxicated condition and is injured by driving his automobile over an embankment is not of itself proof of negligence of such driver, but such an intoxicated condition may be considered together with all the other facts and circumstances of the accident in order to determine whether or not the person so injured was guilty of negligence." The plaintiff also offered the following instructions, which were refused:
"If you find by a preponderance of evidence that Reeside Street at its termination in the bay was, on the morning of October 11th, 1925, at the time of the accident, in a dangerous and defective condition by reason of a declivity there, and that said dangerous and defective condition was unguarded or unlighted, and you further find by a preponderance of evidence that the governing board or council of the City of Monterey, or R.M. Dorton, the City Manager, or Manual S. Perry, the Street Superintendent of the City of Monterey then and there had knowledge or notice of said dangerous and defective condition, and that at said time said officers of said city, or any of them, had such notice or knowledge or notice of such condition for a reasonable time prior to the happening of said accident, in which to remedy such condition or in which to take such steps as might be reasonably necessary to protect the public against such dangerous and defective condition, and you find by a preponderance of evidence that they or any of them failed or neglected to take such steps as might be reasonably necessary to protect the public against such dangerous and defective condition, and if in addition to them you further find that at said time said deceased was traveling in his automobile upon said street and was at said time using ordinary care for his own protection and ran over said street and said declivity into the bay and thereby lost his life, then I instruct you that the plaintiff is entitled to recover from the defendant. I further instruct that at said time it is presumed that said deceased was using ordinary care, and the burden is on the defendant to prove that the deceased was not using ordinary care."
"I further instruct you that if you find that said deceased suddenly discovered when a few feet from the precipice that he was in danger and, in order to avoid danger, turned his automobile to the left and ran across the sidewalk and then over the precipice and thereby lost his life, and that in so doing, he was making the best endeavor that a reasonable man could make under the circumstances, then I instruct you that the plaintiff is entitled to recover."
The first of the above instructions was fully covered by others given by the court. As to the second, while it is the rule that one who without negligence on his part is suddenly confronted with imminent danger is required to act only as a reasonably prudent person would act under the same circumstances (19 Cal.Jur. [Negligence] § 36, p. 598), the rule can be invoked only by those whose position of peril is not caused by their own want of due care (Neff v. United Railroads, etc., 188 Cal. 723, 207 P. 243; Rush v. Lagomarsino, 196 Cal. 308, 237 P. 1066), and where, as here, there was evidence tending to show that decedent’s perilous position was due to his own negligence, the omission therefrom of this question was sufficient ground for the rejection of the proposed instruction (McRae v. Erickson, 1 Cal.App. 326, 329, 82 P. 209; Vedder v. Birely, 92 Cal.App. 52, 267 P. 724).
The record shows that at 2 o’clock p.m. on Saturday, May 26, 1928, after the cause had been submitted to the jury, they were at their request brought into court, and in the presence of counsel the following occurred: A juror: "Your honor, we want to know if it would make any difference to the city of Monterey’s liability— the fact of this car going off the sidewalk, or had it gone off the street. The evidence shows that the car did not go off the street. We are agreed upon that." The Court: "What you want is to know whether it would make any difference that the car, if it did, go off the street before reaching the end of Reeside Avenue?" A juror: "No, we want to know if it would make any difference in the city’s liability if it had gone straight off the end of the street, or as it did go, off the sidewalk and on private property." The Court: "I wonder if you gentlemen can agree upon the testimony. *** I think the testimony upon that point was that it was undisputed that part of the automobile, while traveling after it struck the curb, was on private property, and part was in Reeside Avenue." A juror: "Yes, we are agreed upon that testimony." Upon objection by counsel for respondent that no new instruction might properly be given on a holiday, the court declined to do more than read portions of its previous charge to the jury. Appellant offered an instruction on the question asked by the juror, and upon the above objection being sustained, requested that the trial be continued to the following Monday for reargument, which motion was denied. Section 134 of the Code of Civil Procedure provides that: "No court, other than the supreme court, must be open for the transaction of judicial business on any of the holidays mentioned in section 10, except for the following purposes: 1. To give upon their request, instructions to jury when deliberating on their verdict. ***" It is clear from the language of the section that it was designed to meet situations of the kind here presented, and there can be no reasonable doubt that a court is empowered if requested by a jury deliberating on their verdict to give on any day all instructions properly applicable to the case (Code Civ.Proc. § § 134, 614), and it is immaterial that the same have not been previously given.
The evidence established the fact that at a point about 40 feet from the terminus of the street the automobile left the pavement, passed over the curb, to the sidewalk, and proceeded toward the declivity with its left wheels on private property, and the right wheels upon the sidewalk. The inference might reasonably have been drawn from the circumstances shown that decedent, realizing his danger, attempted to turn his automobile to the left in order to avoid the declivity. Had the jury also found, as they might have, that decedent’s position of peril was not due to his previous negligence, the evidence would have supported the conclusion that his acts in attempting to escape the danger were those of a prudent person under similar circumstances. It is clear that the jury was in doubt as to the effect of the above upon the liability of the respondent; and while the court was not bound to give any particular instruction, it was nevertheless its duty to instruct upon all issues upon which evidence had been adduced, and appellant was entitled to proper instructions bearing upon any legitimate inference which might be drawn from the evidence. Thomas v. Visalia Electric R.R. Co., 169 Cal. 658, 147 P. 972. The record discloses no instruction on the question asked by the jury, nor does it set forth the instruction proposed in that connection by appellant, but the court having refused to entertain the offer or give any new instructions, no further action by appellant was required.
After a careful review of the entire record, including the evidence, we are satisfied that the question should have been answered, and are of the opinion that the failure to do so was prejudicial to the substantial rights of appellant, resulting as a reasonable probability in a miscarriage of justice.
The judgment is reversed.