Opinion
Page __
__ Cal.App.2d __ 213 P.2d 83 GILLESPIE et al. v. CITY OF LOS ANGELES et al. Civ. No. 16999. California Court of Appeals, Second District, Second Division Dec. 28, 1949.Hearing Granted Feb. 23, 1950.
Subsequent opinion 225 P.2d 522.
Rehearing Denied Jan. 13, 1950.
[213 P.2d 85] Ray L. Chesebro, City Attorney; Leonard G. Husar, Deputy City Attorney; Bourke Jones, Assistant City Attorney; Victor P. Spero, Deputy City Attorney, Los Angeles, for appellant.
Ben C. Cohen, Leo Shapiro, S. S. Hahn, Los Angeles, for respondents.
MOORE, Presiding Justice.
Appeals from six judgments on verdicts against appellant for its negligence in failing to maintain a portion of a state highway resulting in the deaths of six persons, and from the order denying appellant's motion to set aside such judgments.
In the far reaches of the sprawling city of Los Angeles through the mountainous region that lies to the west of that metropolis, a state highway--route 156--lies along a circuitous canyon road. While it extends in a generally westward direction through Topanga Canyon from Ventura Boulevard to the Pacific ocean about 20 miles, only .86 of a mile thereof lies within the city's corporate limits. Along this highway an automobile with six occupants [213 P.2d 86] proceeded on the night of September 4, 1943. At a curve in the road the vehicle did not follow the pavement, but, instead, continued on a straight course and plunged 150 feet into the canyon below. No one that viewed the tragedy survived to relate who was driving, the rate of speed of travel or the direction in which the car was headed. The only memento of the dire event was the burned wreckage in the sullen depths below. From the evidences of the manner in which the machine left the pavement and tumbled into the gorge and from the applicable presumptions, it was established that by reason of the city's negligence in failing to maintain warning devices and barriers along the right of way of route 156 the decedent motorists rushed to their deaths.
A Principal state highway running to the north and south.
The road was surfaced with asphaltic concrete pavement varying in width from 20 to 24 feet with shoulders of rock and oil or decomposed granite from six to eight feet in width. At the scene of the accident there were no barriers, posts, barricades, blinkers, cats eyes or other warning devices. Neither was there a zig-zag line painted on the pavement at the approach to the curve. A center stripe of broken white lines had been painted on the road approximately three months earlier. The average life of such a stripe is 14 or 15 months. The grade was approximately 5.5 per cent and the curve had a radius of approximately 150 feet with similar curves above and below the point of accident. Standard signs such as 'Winding Road' and 'Slow' to a designated safe speed had been installed at points above and below the locus of the accident. There was some evidence that the road was within a dimout area proclaimed by the Western Defense Command.
Actions by surviving relatives against appellant, sometimes herein referred to as the city, and the State of California were commenced on the theory that the highway had been defectively designed and that the city and the state had permitted a dangerous and defective condition to exist which caused the accident. After the court at Sacramento held that the amended complaint did not state a cause of action against the state, the action was dismissed as to that defendant. Thereupon, the cause was transferred to the court below in which, after trial, verdicts aggregating $10,000.00 were entered against the city.
As grounds for reversal the city contends:
(1) The boulevard involved is a state highway and under the exclusive control of the state and therefore the city cannot be liable for neglect of it.
(2) Since the danger complained of relates to the construction and design of the highway, the agreement to maintain cannot be held to apply to the Topanga Canyon road.
(3) Not only was the highway not in a dangerous or defective condition but it does not appear that the condition of the highway was a proximate cause of the accident.
(4) The trial having been commenced in Sacramento county, its transfer to Los Angeles county for the purpose of resuming and finishing the proceeding was prejudicial error; the superior court of Los Angeles county had no jurisdiction to try the cases and enter judgments.
City Liable Under General Law
The instant action was instituted under the 'Public Liability Act' of 1923, Statutes, 1923, p. 675; Deering's Gen.Laws, Act No. 5619. Section two provides '* * * municipalities * * * shall be liable for injuries * * * resulting from the dangerous or defective condition of public streets, highways * * * in all cases where the governing or managing board of such * * * municipality * * * having authority to remedy such condition, had knowledge or notice of the defective or dangerous condition * * * and failed or neglected * * * to remedy such condition or failed and neglected * * * to take such action as may be reasonably necessary to protect the public * * *.' (Emphasis added.)
Under the act liability is imposed upon municipalities for injuries to persons or property resulting from dangerous or defective conditions of public streets and [213 P.2d 87] highways when the city has notice of the defect and fails to remedy it. Watson v. City of Alameda, 219 Cal. 331, 333, 26 P.2d 286; Arellano v. City of Burbank, 13 Cal.2d 248, 254, 89 P.2d 113. The general rule is that liability exists not only for defects arising after construction but also for improper construction in the first instance. George v. City of Los Angeles, 11 Cal.2d 303, 308, 79 P.2d 723; Sandstoe v. Atchison T. & S. F. Ry. Co., 28 Cal.App.2d 215, 219, 82 P.2d 216. In order to escape liability the city must either eliminate the dangerous condition or protect the public by adequate warning, and the sufficiency of such warning is a question of fact in each case. Bigelow v. City of Ontario, 37 Cal.App.2d 198, 205, 99 P.2d 298; Barsoom v. City of Reedly, 38 Cal.App.2d 413, 419, 101 P.2d 743.
The jury by its verdict has impliedly found that a dangerous and defective condition existed, and that appellant had notice thereof but failed to remedy it. Under the Act there remains only one other condition precedent to the imposition of liability on the city. The case must be one in which the municipality has 'authority to remedy such condition'. Appellant argues that it did not exercise control over the highway here involved, and therefore is not liable under the act. The act does not require that a municipality exercise control over a highway; rather, it imposes liability where the municipality has 'authority to remedy such condition' and fails to do so. The language of the Act of 1923 is sufficient authority for the city under the facts to remove the peril. The authorities relied upon by appellant are not pertinent on this point. They, Watson v. City of Alameda, 219 Cal. 331, 26 P.2d 286; Perry v. City of San Diego, 80 Cal.App.2d 166, 181 P.2d 98; and Sinclair v. City of Pasadena, 21 Cal.App.2d 720, 70 P.2d 241, relate only to the question of the sufficiency of the notice to the cities involved that a dangerous and defective condition existed. In the instant case the sufficiency of the notice is attested by the prior accidents at the same place. Bigelow v. Ontario, supra, 37 Cal.App.2d at page 204, 99 P.2d at page 301; Sandstoe v. Atchison T. & S. F. Ry. Co., 28 Cal.App.2d 215, 219, 82 P.2d 216. Galiano v. Pacific Gas & Electric Co., 20 Cal.App.2d 534, 67 P.2d 388, is not applicable. It concerns the liability of an abutting property owner, and not that of a municipality.
Appellant's contention that a municipality is not liable for dangerous and defective conditions over which it does not exercise control is not supported. If the failure to exercise control were sufficient to avoid liability the whole purport and intent of the Public Liability Act of 1923 could be obviated simply by inertia. The cases cited by appellant are not in point because the applicable statutes specifically relieved the municipalities of liability or because they were instituted against parties other than municipalities. Notwithstanding the Act of 1923 and the authorities last cited, appellant contends that it 'has no supervision or control over route 156 within its city limits.' In support of such contention it cites a number of authorities which on close inspection fail of their purpose. In Southern California Roads Co. v. McGuire, 2 Cal.2d 115, 39 P.2d 412, a proceeding in mandamus, the city had by contract with the state undertaken the construction and improvement of a state highway within the corporate limits. After such contract had been executed the petitioner agreed by a writing to do the work. This document fulfilled the requirements of the city charter but did not comply with state law. The court held that such a contract must conform with state law. No question of tort liability was raised in the case. Neither the proposition there enunciated nor the facts recited can aid in the solution of the question at bar. Merely because the state retains supervisorial powers over city subcontracts, the city is not thereby relieved of obligations imposed upon it by general law. In the cited case the entire work was to be done by the city. In the instant case, all work was to be done by the state with the exception of that done from the curb line to the property line. In the McGuire case, supra, the city took the position that it was required to comply with state law. In the instant case, the city takes the position that the general laws of the state did [213 P.2d 88] not impose upon it any obligation to erect barriers or warning devices in the area allocated to it by the contract. These contentions are not only inconsistent but the argument of the city finds no support in the McGuire case. In Stadelmann v. City of New York, 162 A.D. 352, 110 N.Y.S. 682, the court held the city not liable for injuries sustained by a pedestrian. There is no showing that the road there involved was a state highway. The case sheds no light upon the instant issues. The same is true of Trotter v. Town of Glenmora, La.App., 2 So.2d 510, which follows the Stadelmann decision.
The City is Liable Under the Contract.
For the purpose of improving and maintaining certain state highways, the state determined about August, 1943, to effect certain projects. In that month the city and the state entered into a written agreement pertaining to the maintenance of certain state highways within the city, including route 156. In compliance with section 203 of the Streets and Highways Code, the agreement provided for the expenditure of $7,250 by the Department of Public Works. 'The portions of state highway routes to be maintained under project 97(b) are described as follows: 'Route 156, Topanga Canyon Road, from city limits about 2.70 miles north of junction with Route 60 to north city limits near Fernwood Park; a length of approximately 0.86 mile for this portion.'' The Department of Public Works did not delegate authority or jurisdiction over route 156 in its entirety to the city. The only specific reference to that highway comes under the heading: '(b) Work by the department.'
The fund expended on the construction and maintenance of highways is designated 'Motor Vehicle Fuel Fund.' It is raised by the levies of 6 cents per gallon on all gasoline fuel distributed in the state. Revenue & Taxation Code, secs. 7351 and 8651. The state treasurer pays it into the State Highway Fund. Ibid, secs. 8357, 9302. Such fund must be expended for the maintenance of state highways. Streets and Highways Code, sec. 188. The Department of Public Works shall expend an amount not less than the revenue derived from 1/4 cent per gallon tax on such fuel for the improvement and maintenance of state highways within cities. Ibid, sec. 203. A municipality may contract with the state for the performance of the work within its corporate limits. Ibid., sec. 202, and in respect to the proportion of the expenses of such improvement and maintenance of a highway to be borne by the respective parties, and such highway may be located in whole or in part within the limits of the contracting city. Ibid., sec. 130.
'Article VI, Miscellaneous Provisions' of the agreement provides: 'In the event the work of maintaining the state highway routes within the city is being done by the department, the approval of the department shall be secured before any encroachment on the surface or any cut, excavations or openings in the vehicular roadway are permitted. The department will maintain the State highways from cub line to curb line only. There is hereby delegated to the city the maintenance of the areas between curb lines and right of way lines * * *.'
Appellant advances the proposition that it is not liable for a dangerous condition of property over which it does not exercise control. If by any chance the city is not liable under the Public Liability Act and the decisions heretofore cited, it is liable beyond a peradventure by virtue of its agreement for detriment caused by its neglect to maintain its streets in a reasonably safe condition. Under its contract with the state the liability of appellant is accentuated. In support of its thesis, the city cites Griffith v. Town of Berlin, 130 Conn. 84, 32 A.2d 56; Gardner v. City of Covington, 86 Ind.App. 229, 156 N.E. 830; Brunacci v. Plains Township, 315 Pa. 391, 173 A. 329; Barnett v. City of Opelousas, La.App., 13 So.2d 788; Glover v. Town of Ponchatoula, La.App., 17 So.2d 44; Gabbert v. City of Brownwood, Tex.Civ.App., 176 S.W.2d 344. In no respect do these authorities apply. In none of them was there an agreement between the city and the Department of Public Works obligating the municipality to maintain a part of the highway in question.
While 'full control and possession of all state highways is vested in the State Department [213 P.2d 89] of Public Works', Streets and Highways Code, sec. 100, yet the Department of State Highways may delegate to any city the department's powers, duties and authority as to any state highway or any part thereof. Ibid, sec. 676; Southern California Roads Co. v. McGuire, 2 Cal.2d 115, 123, 39 P.2d 412.
Appellant contends that the italicized portions of its contract pertain to the maintenance of sidewalks and parking strips along those streets which are improved and that they can have no reference to a mountain road such as that in Topanga Canyon 'where the only portion of the right of way improved for travel and so used is the roadway designed and maintained by the State for vehicular travel.' But the unambiguous language of the contract clearly gives to the city the right and obligation to maintain those portions of the highway extending outward from the curb line to the right of way lines and by its contract the city was in that area obligated to do whatever was essential to make the highway reasonably safe for travel at all times. That the trial court adopted such thesis is evidenced by the fact that it instructed the jury that the pleadings admitted that by the agreement the city was authorized to maintain the areas between curb lines and right of way lines. This instruction was correct since appellant had attached a copy of the agreement to its answer as a part thereof. Having admitted the execution and validity of its own contract appellant is in no position to deny the significance of its plain provisions.
Thus by contract not only did the city acquire the right to erect warning signs and barriers upon those portions of the highway outside the paved road but thereby its duties under the Public Liability Act were enlarged. There is no reasonable basis for appellant's contention that it lacked power to do the acts essential to the maintenance of the .86 mile on route 156 as a safe highway. The fund under control of the Highway Commission was available in sufficient amount to make it safe. By the contract the city was required to 'maintain the highway from curb line to the right of way line.' And even though the language of the contract did not require the city to perform any work upon the paved portion, a reasonable construction would require appellant either to paint zig-zag white stripes on the pavement at approaches to curves or to keep barriers outside the pavement wherever a dangerous condition existed so near the pavement as to be a peril, or to post warning signs. Having failed to do those things, even assuming appellant's contention that it lacked power or authorization to do so, it was nevertheless not relieved of the responsibility to warn persons lawfully using the highway that a dangerous condition existed. Shea v. City of San Bernardino, 7 Cal.2d 688, 693, 62 P.2d 365; Rose v. County of Orange, 94 Cal.App.2d 688, 211 P.2d 45. A municipality may not ignore a hazard to travelers within its boarders on the ground that it lacks jurisdiction to act. Shea v. City of San Bernardino, supra, 7 Cal.2d at pages 692, 693, 62 P.2d at pages 366, 367. There was no evidence adduced at the trial that the city had urged the Department to remedy the condition at the place of accident. Having failed to take action itself under a contract which empowered it to act, and having failed to urge action on the part of the Department which appellant contends had the sole power to act, the city cannot now assert that it was not delinquent in its duty to the public.
Maintenance
It is next argued that the posting of adequate warning signs and erection of guards and barriers is not a matter of maintenance, but of construction and therefore the agreement did not require the city to erect such devices. The answer to this contention is found in section 27 of the Streets and Highways Code: '* * * 'maintenance' includes * * * the necessary provision for special safety conveniences and devices.'
Other Issues
Over objection evidence was admitted to show efforts on the part of the city to induce the state to construct projects on other portions of route 156 out of the available fund. Appellant contends that its admission was prejudicially erroneous. [213 P.2d 90] The record discloses that the evidence was admitted to show that such a procedure was available to the city to procure the improvement of the portion of route 156 here involved. That the city was interested in the condition of other parts of the highway and failed to take an interest in that portion within its own boundaries was proper evidence to enable the jury to determine whether the city had been delinquent in its duty to the public. Since 'the improvement of streets within the boundaries of a city is an affair in which the city is vitally interested', Shea v. City of San Bernardino, supra, 7 Cal.2d at page 693, 62 P.2d at page 367, its failure to take an interest therein is best demonstrated by its interest elsewhere. No valid reason appears why the city could not have requested authority from the Department to act and have requested its share of the gasoline tax fund with which to erect such guard rails and warning devices as would have removed the death trap which took the lives of the decedents. Even if the evidence was inadmissible, it is not shown how it proved prejudicial to appellant's cause, and without prejudice, the error, if any, is not ground for reversal. Constitution, Art. VI, sec. 4 1/2.
Damages Not Excessive
The damages awarded were not excessive. Ottie Gillespie was awarded $20,000 for the death of her youngest son, her sole support. Ila and Patrick Gillespie, the widow and minor son of Doyle Gillespie, were awarded $30,000 for the loss of the husband and father. The value of the proof of domestic infelicity in their home was a matter for the jury's appraisal as well as all other factual issues. The husband earned in excess of $3,000 per annum while the expectency of Ila exceeded 43 years and the minority of Patrick exceeded 18 years. The joint award to them was not excessive. See Sherman v. Southern Pacific Company, 34 Cal.App.2d 490, 93 P.2d 812; Weiand v. Southern Pacific Company, 34 Cal.App.2d 500, 93 P.2d 1023; McDonnell v. Southern Pacific Company, 17 Cal.App.2d 432, 62 P.2d 201. Petra Perez Oveso, Evelyn Russell, Charles Bittner and Mrs. and Mrs. Smith were awarded $15,000 respectively for the deaths of their minor children. In the case of each of these plaintiffs, ample proof was adduced showing the contributions by the decedent to his parents and his loyalty to and affection for them. On these matters the findings of the jury in the absence of error are conclusive. Hunton v. California Portland Cement Co., 64 Cal.App.2d 876, 149 P.2d 471, 150 P.2d 221, cited by appellant on the excessiveness of the verdicts is not in point. The father was a young and successful businessman. The possibility that the deceased son would ever have supported him was too remote.
A large award for the loss of a loved one does not in and of itself establish that it is the result of prejudice or passion. Compensation for loss must be fixed in view of the purchasing power of the dollar at the time of the loss and not by its power of 20 years ago. Today the dollar's value in purchasing power is not to exceed 60 per cent of its value in 1940. The value of an award is not to be 'estimated in the numerical quantum of the recompense but in its comparative ability to furnish the necessities of life.' O'Meara v. Haiden, 204 Cal. 354, 367, 268 P. 334, 339, 60 A.L.R. 381; Butler v. Allen, 73 Cal.App.2d 866, 867, 870, 167 P.2d 488; Brown v. Boehm, 78 Cal.App.2d 595, 603, 178 P.2d 49. Not-only is loss in dollars and cents to be considered in fixing damages, but also loss of comfort, society and protection. Therefore, no yardstick as to amount can be utilized. Holder v. Key System, 88 Cal.App.2d 925, 940, 200 P.2d 98. In the instant case it cannot be said that the compensation awarded for the loss of minor child or husband was unduly generous.
The Court had Jurisdiction.
Appellant's final contention is that the superior court of Los Angeles county was without jurisdiction to try the cause. The action was originally filed in that county but was removed to Sacramento county on motion of the State where it was stipulated between plaintiffs and the State: '* * * that since said defendant desires to present to the above-entitled court [213 P.2d 91] the defendant's contention that the complaint fails to state a cause of action, and since both parties desire to determine said point without inconveniencing a large number of witnesses by preparing at this time for the trial of the entire cause, it may be deemed that the first witness has been sworn and that the said defendant has seasonably objected to the introduction of any testimony whatever on the grounds that the complaint fails to state a cause of action against the defendant State of California, and that thereupon the matter may be argued and submited to the court.' The objection of the State was sustained and a judgment of dismissal as to the State rendered. The cause was then transferred by the court to Los Angeles county on the ground of convenience of witnesses under subdivision 3 of section 397 of the Code of Civil Procedure. Appellant asserts that the trial had actually commenced in Sacramento county and that it was therefore improperly discontinued and transferred to another county.
It is the prevalent practice to rule upon a general demurrer before receiving evidence of the allegations. Upon the State's objection to any evidence the issue of law was raised as to the sufficiency of the complaint. The Sacramento court did not consider the merits of respondents' cause of action against appellant but simply determined as a matter of law that the facts alleged in the second amended complaint were insufficient to constitute a cause of action against the State. That ruling having adjudicated with finality respondents' claims against the state, it was correct practice to deal with the matter as though respondents had filed the action at first in the Sacramento court against the city only. No pertinent authority is cited for the proposition that the court could not thereafter transfer the cause to another county for the convenience of witnesses. What else could the Sacramento court have done since the only interested parties remaining in the action were residents of Los Angeles county and their witnesses resided there? To have denied the demand for removal would have been an injustice to all the litigants.
All the issues presented by this appeal were duly considered by the trial judge during the course of the trial. The question of jurisdiction was considered on the hearing of appellant's motion to set aside the judgments. No prejudicial error appears with respect to any judgment or in the order denying appellant's motion to set aside the judgments.
The judgments and the orders are affirmed.
McCOMB, J., concurs.
WILSON, J., concurs in the judgment.