185 P. 428 | Cal. Ct. App. | 1919
This is an appeal by the plaintiffs from a judgment in favor of the defendant in an action to recover for personal injuries sustained by the plaintiff, Elizabeth Calvert, and alleged to have been caused by the negligence and carelessness of the defendant corporation in permitting and allowing the sidewalk in front of a building owned by it to become defective. The defendant corporation is and was at the time of the accident the owner of a certain building on Turk Street, near Market Street, which was occupied by a tenant holding under a written lease. The facts are practically undisputed, and the court found that at the time of the leasing of the premises by the defendant to the tenant, the said premises, including the sidewalk in front thereof, were in first-class condition and that there were no holes, breaks, or depressions or other defects of any kind whatsoever in the sidewalk, and that said premises were in all respects in good condition; that the tenant expressly agreed in the said lease that all repairs necessary to the said premises should be made by said tenant at its own cost and expense and that the lessor should not be called upon to make any repairs whatever; that the lease was in full force and effect at all times mentioned in the complaint; that whatever holes or breaks may have occurred in the sidewalk were made without the knowledge of the defendant and without any negligence on the part of the defendant, and that they were not either knowingly, negligently, or carelessly allowed or permitted to remain or continue in said sidewalk by said defendant. The evidence is undisputed that the defendant had no knowledge of any breakage in the sidewalk until after the accident. Upon these facts the record presents but one question: Whether the owner of a building is liable in damages for injuries resulting from failure to keep the sidewalk *458 in repair, where the building has been leased and is being occupied by a lessee who has agreed to repair, and where the owner has no notice of any defect in the sidewalk, and there are no facts in evidence which would have put a reasonably prudent man upon inquiry.
Appellant admits that formerly, in this state, the owner of property was not liable for failure to keep the sidewalk in front thereof in repair. She recognizes the rule as announced in the case of Eustace v. Jahns,
In the case of Martinovich v. Wooley,
The appellant in the present case contends that the law has been changed since these cases were decided; that amendments to the charter of San Francisco have placed a primary responsibility upon owners of property with relation to the repair of the sidewalk in front of the same and that such responsibility is not dependent upon notice by the superintendent of streets of a defective condition. Reliance is placed upon the portion of section 16 of chapter 2 of article VI, which provides that "until the sidewalk or roadway of any improved street in the city and county of San Francisco is finally accepted . . . the obligation to repair, reconstruct or improve the same is imposed upon the owner or owners of the lots fronting thereon." The appellant points out that section 21 of the Statute of 1862, page 401, providing that not less than the whole width of the street shall be accepted, has been changed by section 23 of the present charter, which provides that not less than the width of the roadway shall be accepted, and argues that this change indicates an intention that the city shall not now accept the sidewalks. This argument is supported further by calling attention to other amendments to the charter which appellant construes as indicating an intention in harmony with her views. Upon this assumption appellant's argument proceeds, and it is urged that as the sidewalk in the case at bar was not accepted, the above-quoted provision of section 16, chapter 2 of article VI, becomes applicable. Reliance is then placed upon section 5, article I, providing that no recourse shall be had against the city and county for damages suffered by reason of the defective condition of any sidewalk which has not been finally accepted by the supervisors of the city and county as by law or in the charter provided, but in any such case, the person or persons on whom the law may have imposed the obligation *460 to repair such defect in any such sidewalk shall be liable to the party injured for the damage suffered or sustained.
In passing we call attention to the fact that the language of section 16, above quoted: "Until the sidewalk . . . is finally accepted . . . ," by its very terms recognizes the fact that at some time certain sidewalks may be accepted. But we deem it unnecessary for us to decide here whether or not the city accepts the sidewalks in accepting the "roadway," or whether a change has been made in this respect by the amendments to the charter upon which appellant relies. Because, even though we accept appellant's position, for the purpose of the determination of this case, and agree that the sidewalk in front of defendant's house was not accepted, and that the primary responsibility for its repair rested upon the abutting property owner, and that he was not entitled to formal notice of defects from the superintendent of streets — yet the above-quoted language of the charter imposing upon the owner such responsibility and declaring his liability for injury suffered by reason of his failure to meet his obligation in this respect — is not such as to make the owner an insurer of all persons passing along said sidewalk. We think if such an unusual liability were sought to be placed upon owners of property, that the charter would have been more specific in stating it. [1] An owner is primarily responsible for the repair of all portions of his premises, and yet he must have notice of defects before he can be held liable in damages for failure to repair. He is not an insurer with respect to the condition of his premises generally, although primarily liable. It seems clear to us that even if the appellants' contention be granted, nevertheless the owner is only liable for failure to perform the duty to repair his sidewalk, placed upon him by the charter, under the same circumstances as she would be liable for the failure to repair any other portion of the premises of which he is the owner, i. e., he is liable for a negligent failure to repair, and negligence cannot exist without knowledge of defects or circumstances which would put a prudent man upon inquiry. Even conceding that the defendant is not entitled to the formal notice by the superintendent of streets, he must yet have some notice — some knowledge of the need of repairs acquired in some manner. *461
In the case of Kalis v. Shattuck,
Unless the provisions of the charter relied upon by the appellant make the owner an insurer, the findings of the trial court that the holes in the sidewalk alleged to have caused the injury to the plaintiff were made without the knowledge of the defendant, and that they were not knowingly, negligently, or carelessly allowed or permitted to remain or continue in sail sidewalk by the defendant, make necessary its conclusion that the defendant in the present action is not liable.[3] It is not necessary for us to discuss the relative rights and duties of the defendant and the city authorities under the charter provisions relied upon by the appellant. It is sufficient for the present case to decide that such provisions do not make the owner of property an insurer of the safety of persons using the sidewalk, nor a guarantor that the sidewalk contains no openings.
The judgment is affirmed.
Nourse, J., and Brittain, J., concurred.