Wise v. City of Los Angeles

9 Cal. App. 2d 364

• Court: California Court of Appeal
• Decided: October 7, 1935
• Docket: Civ. 10454
• Status: Published

Opinions

McCOMB, J., pro tem.

This is an appeal from a judgment in favor of plaintiff and against defendant in an action for damages for personal injuries sustained by plaintiff found to have resulted from a hole, six inches square and six inches deep, dug and left by defendant’s employees in one of its public streets for a period of four or five days. The trial court found in favor of the plaintiff on each material allega-5. tion in the complaint and assessed damages in the sum of $1,035.

Defendant relies for reversal of the judgment on three propositions:

First. The evidence is insufficient to support the findings of fact.

Second. The defendant municipality is not liable for injuries resulting from a defective condition of one of its streets in the absence of actual knowledge or actual notice of such dangerous or defective condition.

Third. The existence of a defective condition in a public street for the period of four or five days does not as a matter of law constitute constructive notice to the municipality and a reasonable time to remedy the condition under the Public Liability Act of 1923, Statutes of 1923, page 675, Act 5619, Peering’s General Laws, volume II, page 3052.

As to defendant’s first proposition, we have examined the evidence and are of the opinion there was sufficient evidence considered in connection with such inferences as the trial court may have reasonably drawn therefrom to sustain each and every material finding of fact in favor of plaintiff. We therefore refrain from further discussion of the evidence. (Leavens v. Pinkham & McKevitt, 164 Cal. 242, 245 [128 Pac. 399]; Koeberle v. Hotchkiss, 8 Cal. App. (2d) 634 [48 Pac. (2d) 104].)

Turning to defendant’s second proposition, the defendant municipality is liable for damages, resulting from a defective condition existing in one of its streets, in the absence of actual knowledge or actual notice of the dangerous condition of the street, where, as in the instant case, a presumption of constructive notice has been created from the existence for an unreasonable length of time of the dangerous condition. (Hook v. City of Sacramento, 118 Cal. App. 547, 553 [5 Pac. (2d) 643].)

Turning to defendant’s final proposition, it is a question of fact for the trial court to determine whether the dangerous condition in the public street had existed for a sufficient length of time to constitute constructive notice and also whether a reasonable time to remedy the condition had existed. (Hook v. City of Sacramento, 118 Cal. App. 547, 554 [5 Pac. (2d) 643].)

Furthermore, the defendant municipality had actual notice of the dangerous condition of the public street, since the testimony was to the effect that one of the surveyors of the defendant city dug the hole in the public street and another witness testified that it was not refilled. On this state of facts, the defendant having created the dangerous condition through its agents, had knowledge of the defect at that time and needed no further notice. (Oklahoma City v. Hayden, 169 Okl. 502 [37 Pac. (2d) 642, 644].)

The judgment is affirmed.

Grail, P. J., and Wood, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on November 4, 1935, and the following opinion then rendered thereon: