Plaintiff brought this action to recover damages from the city of San Diego for injuries sustained
West Palm Street, upon which plaintiff’s injury occurred, is a short street running in an east-west direction and connecting a San Diego residential district with direct routes to the Consolidated Aircraft factory. Prior to the winter of 1940-1941 the area of this street was in a natural state—a rather steep and rough hillside—and it had not been opened to traffic. In November, 1940, the city itself (not through an independent contractor) began to improve the street in order that it might be opened to facilitate the movement of workers to and from the aircraft factory. The work was done under the direction of one Milton Rader, defendant’s street foreman in charge of new construction and general maintenance of streets.
The improvement work included the making of cuts and excavations varying in depth from a few inches to a maximum of about 13 feet, the grading of the surface into street form, and the creation of a dirt curbing on each side of the road and a dirt sidewalk ten feet wide extending from the northerly curb to the adjacent embankment which, opposite the place where plaintiff’s injury was sustained, was several feet high. After the grading had been completed a light oil was sprayed over the roadway and against the curbs. Rader (the district street foreman) testified that the curbs were bevelled and sprayed with oil to provide a seal against erosion and to prevent dust from blowing. The oil, under pressure and at a •temperature of 450 degrees Fahrenheit, was sprayed from a truck with a power pump and spread over the curbs a substantial distance onto the sidewalk, where it hardened and formed a crust having the appearance, according to one witness, of an oil and gravel surface. The extent to which the sidewalk was covered with oil depended materially upon the
Concerning the street generally Rader testified that after the grading and oiling had been completed “an ordinary individual” viewing the street “would have a tendency to think that there was pavement underneath” and would not “mistake it for just a good, hard California dirt street”; that the street “couldn’t possibly be mistaken for a dirt street.” Even if we assume that in so testifying the witness had in mind the roadway and not the sidewalk it would nevertheless follow that the trial court could have concluded that the portion of the sidewalk which was sprayed with oil likewise had the appearance of a paved sidewalk.
Rader testified that the overlap of oil on the sidewalk bordering the curb was “four to six, sometimes eight inches.” The evidence produced by plaintiff indicated that such oiled strip on the sidewalk was approximately 18 inches wide at the point of the accident. There was also a conflict in the testimony as to the height of the curbs. Rader testified that the curbs did not exceed eight or ten inches in height, while witnesses for the plaintiff testified that the curbs were 12 to 18 inches high and that at the point where plaintiff fell there was a perpendicular drop from the sidewalk to the street level. For the purpose of drainage the sidewalk was so graded that it was approximately three inches lower at the curb than it was at the property line. After the improvement was completed, about January 8, 1941, a sign forbidding use of the street by the public was removed. From the time the work was completed until early February, 1941, Rader occasionally inspected the new roadway. Such inspections revealed a number of pot holes which Rader said’ were “usual” in streets treated as West Palm Street had been treated. It does not appear that anything was done to fill such holes.
Insofar as the sidewalk itself was concerned the improvement plan called for no maintenance inspections after grading and none were made. Mr. Rader testified that the sidewalk was considered to be “unimproved” and that “We don’t try to maintain or keep up unimproved sidewalks, only when there is a bad wash or something that somebody has reported to us as dangerous”; “we pay no attention unless something is turned in to us as dangerous.” He admitted that he had observed that “There is bound to be more erosion on a hill than there is on a level piece of ground.” The position of the
Plaintiff testified that the hole in the street, prior to her fall, had the appearance of a “mud pie” formed in the crust of the street; that it was about five inches in diameter and that she did not “notice any depth to it.” She first noticed the hole “about a couple of days before the accident.” As plaintiff fell into the hole “it gradually got big”; “from the five inches it got to about two feet” deep and “wide enough to let [plaintiff’s] body in.”
Mrs. Margaret Crawford, a witness for plaintiff, testified that she had seen a hole in the street “just out from the sidewalk” where plaintiff fell; that it “was very small, around the first of January, but then after the rains, why it became larger.” She further testified that about one week prior to plaintiff’s injury she (Mrs. Crawford) suffered a similar fall, near the place where plaintiff fell, caused by the crumbling of the sidewalk.
The witness Rader (who, as previously mentioned, was district street foreman) testified as to the construction of the street and sidewalk and as to the effect of erosion on dirt sidewalks and streets. He stated that “when we put a dirt sidewalk in we more or less always expect to have to do work on
The trial court found, among other things, that the defendant city had control of the street and sidewalk where plaintiff fell; that it “negligently maintained” them and that they were “in a dangerous and defective condition”; that defendant, “about January 8, 1941, had improved the street and sidewalk by grading the sidewalk and street and oiling the same and that by reason of said work the sidewalk and street was [sic] left in a condition which was inherently dangerous; that said inherently dangerous condition was known to the defendant and was not known to the plaintiff”; that “the hole in the street adjacent to the sidewalk had existed for some time prior to March 21,1941; that thereby the street and sidewalk were made dangerous and defective”; that defendant “and its officers who had authority to remedy said defective and dangerous condition” had notice and knowledge of such condition but “failed and neglected for a reasonable time after acquiring said knowledge and receiving said notice to remedy said defective and dangerous condition”; and that as a proximate result of the dangerous and defective condition of the sidewalk and of the negligence of defendant plaintiff fell upon the sidewalk and into the hole in the street and was injured.
Plaintiff contends that the evidence amply supports the findings and shows that an inherently defective and dangerous condition was created by defendant and that therefore no other notice was necessary. She also contends that the
The rule is well established that when it is shown that a certain street and sidewalk improvement has been planned by city officers and constructed in accordance with such plan, and that by carrying out the plan a dangerous or defective condition has been created, no further proof is needed to charge the city with notice of that condition.
(Rafferty
v.
City of Marysville
(1929),
In other words, it is the position of defendant that a public street is not inherently dangerous unless it is immediately dangerous. Since the statute (Stats. 1923, p. 675; Deering’s Gen. Laws, 1944, Act 5619) imposes liability upon the basis of either a dangerous or a defective condition, defendant must also take the position, if its contention is to have substantial materiality, that an improvement is not inherently defective unless, at the moment of completion and under the conditions then existing, it is actually defective for the purpose and use for which it was constructed. Stated still differently, the effect of defendant’s argument in this regard is that a potential or latent danger or defect is not inherent. This position is untenable. A quality or attribute is said to be inherent when it is “Firmly or permanently contained or joined; infixed; indwelling” or “Involved in the constitution or essential character of anything.” (Webster’s New Int. Dict. (2d ed.)) The expression “inherently dangerous” has been defined to mean “that in the end there inheres danger.”
(Majestic Theater Co.
v.
Lutz
(1925),
In
Black
v.
Southern Pac. Co.
(1932),
supra,
In
Mulder
v.
City of Los Angeles
(1930),
Even if we could interpret the essential elements of the plan of improvement shown here as not calling for an inherently dangerous or defective condition it would avail defendant nothing on the record before us. Actual notice of a defective or dangerous condition is not required. Constructive notice satisfies the statute.
(Laurenzi
v.
Vranizan
(1945),
As to what constitutes a dangerous or defective condition no hard-and-fast rule can be laid down, but each case must depend upon its own facts.
(Rafferty
v.
City of Marysville
(1929),
supra,
Having in mind the foregoing principles we cannot hold that as a matter of law, upon the evidence before us, a dangerous or defective condition was not created by defendant or that injury to the public was not reasonably foreseeable. The testimony of Milton Rader above referred to, showing his knowledge of past occurrences and of eventualities reasonably to be expected in connection with such improvements as those made on West Palm Street, together with the physical facts regarding the hilly terrain, the impending rainy season, etc., satisfactorily supports the finding that the defendant had the requisite notice of a dangerous condition resulting from the jagged termination of the friable oil coating on the dirt sidewalk which was susceptible to deterioration, undermining, and erosion. We do not think that a city should escape liability for damages caused by hidden defects in its sidewalks where it makes no inspections of such sidewalks and does not repair them, although it knows that such defects, while originally potential, are inherent in the plan of street improvement and, under conditions which are bound to occur, should reasonably be expected to become actual and imminent unless vigilance in care and maintenance is exercised. Under such circumstances whether the sidewalk is immediately dangerous when constructed is immaterial because it is at least defective by reason of being potentially dangerous, and the statute requires no more. It is to be remembered in this regard that the city, although expecting erosion, made no effort to inspect, maintain, or repair its “unimproved” sidewalks except as dangerous conditions were reported to it by members of the public.
The evidence discloses no necessity, so far as improvement of the roadway was concerned, for spraying oil on the sidewalk to the extent shown here, but an oiled surface did
Defendant attacks the testimony of Mrs. Crawford, who stated that “around the first of January” she had seen the hole into which plaintiff fell; that at that time it was very small but that it became larger after the rains. Defendant urges that this testimony is not worthy of credence for the reasons that the evidence was conflicting and, in particular, that the street improvement was not completed until the 8th of January. Obviously Mrs. Crawford’s testimony purported to be only an approximation as to date and the weight thereof
Defendant contends that to hold it bound to foresee and to guard against the development of erosion under the circumstances shown would be to preclude use of this type of improvement; that it would make the city an insurer of the safety of its streets; that a reasonable inspection would not have disclosed the defects in the sidewalk or street or the dangerous character thereof and for such reason alone, if no other, constructive notice cannot be predicated upon the hole in the street, Mrs. Crawford’s fall, or other indicia disclosed in the record. We think that no extended discussion is necessary in respect to the points last mentioned. They are largely disposed of by what has already been said. Obviously, the city is not being held as an insurer of anything but it is being held to the standard of ordinary care in planning, constructing, and maintaining its streets and sidewalks. Liability for its failure in that regard is not due to the whimsy of court or jury; it is imposed by the public liability statute. The evidence amply establishes that the improvement here was inherently defective in its original plan. But even if we could regard the plan as proper the evidence shows that a defective and dangerous condition did arise and that defendant is chargeable with notice of it. Such evidence tends to show that the actual danger which was imminent in March was apparent at a much earlier date. Defendant in January directly and knowingly caused or permitted the oil to be sprayed onto a part of the sidewalk and made no effort to clear away the resulting deceptive crust or to mark it as dangerous although it knew that erosion was imminent. It made some provision against erosion on the private property adjacent to the cuts and
excavations;
it likewise made some provision against ero
For the reasons above stated the judgment is affirmed.
Gibson, O. J., Shenk, J., Carter, J., and Spence, J., concurred.
As I read the record in this case, there is no evidence of a dangerous or defective condition for which the city is responsible unless rules which have been stated and applied in many decisions of this court are now to be abandoned. In effect, my associates now make a city the insurer of the safety of everyone using its public streets with the obligation to keep them in such regair as to preclude the possibility of injury to one traveling upon them, a standard of care impossible to meet and far beyond any reasonable construction of the statute imposing municipal liability under stated and restricted circumstances.
The trial court found that the city “negligently maintained” the street and the sidewalk and that, at the time of the accident, they were “in a dangerous and defective condition.” Also, it is said, the city upon grading and oiling the street and sidewalk, left them in an inherently dangerous con
Justification for these findings is first placed upon the ground that the testimony of the street superintendent supports the conclusion that the city “had the requisite notice of a dangerous condition resulting from the jagged termination of the friable oil coating on the dirt sidewalk which was susceptible to deterioration, undermining and erosion.” But his statement was only to the effect that, during the rainy season, a certain amount of erosion is to be expected; it includes nothing from which the court could reasonably infer that the witness, or anyone else, reasonably could have foreseen that rainwater would undermine the oiled portion of the sidewalk in such a manner as to leave the surface apparently intact. Otherwise stated, the street superintendent, the evidence clearly shows, fully understood that the winter rains would wash across and erode an unimproved sidewalk of a hillside street and, according to his explanation, the city undertook to repair “a bad wash or something . . . reported to us as dangerous.” However, there is no evidence in the record tending to show that he had any reason to believe erosion would take place in such a way as to leave a latent defect which was not apparent to one using the sidewalk. To the contrary, he testified that the purpose of oiling the dirt street and curb was to prevent “ordinary erosion.”
Yet Mr. Justice Sehauer impliedly uses this testimony as the basis for his statement that the undermining of the oil coated surface on the sidewalk was a hidden defect originally potential and inherent in the plan of street improvement under conditions which are bound to occur. “The evidence amply establishes,” he says as a second ground of decision, “that the improvement here was inherently defective in its original plan.” I find no such evidence, nor any basis for the statement in the succeeding sentence that if the plan of construction may be regarded as proper, “the evidence shows that a defective and dangerous condition did arise and that the defendant is chargeable with notice of it.” This evidence,
The record includes no evidence showing that the crust of oil would be undermined by erosion in a manner not readily visible to any user of the sidewalk. Knowledge that erosion would occur is not the equivalent of knowledge that water might work under the oiled surface through subterranean crevices or in some unusual manner. But to extend the effect of the evidence, my associate calls to his aid the strange doctrine stated in
Estate of Bristol,
Under these circumstances, in my opinion, the judgment is not sustained by any proof and should be reversed.
Traynor, J., concurred.
Appellant’s petition for a rehearing was denied April 26, 1945. Edmonds, J., and Traynor, J., voted for a rehearing.