*1 21405. A. No. In Bank. Dec. [L. 1950.] al., Respondents, OTTIE et GILLESPIE v. CITY OF LOS ANGELES, Appellant.
Ray City Jones, Assistant Chesebro, Attorney, Bourke L. Doherty and Leon Spero, Victor P. A. Attorney, James Deputy City Attorneys, Appellant. for Husar, ard G. for Montgomery and Robert E. Reed as Amici Curiae C. R. Appellant. Shapiro Respondents. for and S. S. Hahn Cohen,
Ben C. Leo highway TRAYNOR, extending Route 156 is J. Topanga Angeles County. Beach in from Los Chatsworth Boulevard of From Ventura Sherman Oaks west through Topanga 20 Pacific about miles Ocean commonly Topanga Canyon known Canyon, highway, varying Road, twisting paved mountain road in width is a of oil feet, with 6 to 8-foot shoulders rock and from to Topanga Can granite. About .86 of a mile of decomposed yon corporate of of Los Road limits lies within Angeles. wreckage morning September 5, 1943, the of burned
On Gillespie Hupmobile plaintiff of a 1933 sedan owned Ottie Canyon Topanga the bottom of below was discovered at Angeles city limits, part highway within the about of the Los Canyon junction Topanga Road 3.2 of miles northeast Highway Topanga Beach. In wreck- Roosevelt at years from 19 age people, six were the charred bodies of eye- and no age. of the accident There were no survivors thereto. witnesses accident,
Plaintiffs, surviving of the relatives the victims Court wrongful Superior death in the brought this action joining of Los Angeles as defendants County, Los complaint alleged Angeles and the State California. The negligence in the accident was caused defendants’ design, construction, highway, and maintenance in that so laid out and constructed as to make it “said straight point appear that and continuous at said the same presumably which the automobile left when the road] [at prescribes curve, swinging fact the same a horseshoe turn returning approximately line sharply inward and to a even highway immediately prior with the line of said to said abrupt turn . . . the from at said distance said point being more bottom said embankment than . . there lights, blinkers, feet . that were and are no warning signals approach kind at or character said curve indicate or disclose the existence . . . thereof guard that there were and fences, rails, are no barri- barriers, cades or embankments or safety other devices around said or the approach apprise persons curve thereto to fact point said curves at said and does not.con- straight tinue place direction . . . that at said time and and as a and proximate direct result the said and defective aforesaid, condition as the said automobile . . . off went and fell to the bottom the embank- *3 ment, point at said a of distance more than 150 feet.” It is plaintiffs’ theory alleged negligence that reason of the of and the failing state in approaching to warn drivers of the existence of the curve, the driver of automobile, exercising while due care for safety his own and that of his passengers, straight drove road, ahead on the knowing that sharply it curved inward, plunged and off the road to the canyon. bottom the On motion, change the state’s a venue to County granted. Sacramento The trial court there sustained objection to the introduction of state.’s any testimony and the action was against dismissed the state ground against suit was one in sovereign it capacity to which had it not consented. Plaintiffs’ motion for Angeles retransfer to County Los for convenience of granted. witnesses was The proceeded cause to trial before jury against the city, jury and the returned verdicts for plaintiffs aggregating $110,000. city appeals from the judgments entered thereon. city’s principal contention is legally it was not responsible for the condition where the accident occurred because it had no over, authority control or respect to, the maintenance of highway. Plaintiffs contend, however, that provisions under the of the Public Liability (2 Act of 1923 Deering’s Laws, Gen. now Act dangerous 53051) liable for or de- Code, Gov. § whether or not it has control conditions
fective enough it had control event over it, over and that remedy condition question to had so wished. provides: Liability Act of 1923 The Public ‘‘ municipalities school shall be liable districts Counties, resulting persons property to from the injuries public dangerous streets, highways, condition of or defective buildings, grounds, property in all where works cases managing county, municipality, or hoard such governing person having hoard, au- district, or other or school officer condition, knowledge remedy or notice of thority such neg- dangerous . . . and failed or or defective acquiring time after such knowl- lected, for a reasonable remedy such condition or edge receiving notice, to such acquiring neglected a reasonable time after such failed and may knowledge to take such action as receiving such notice against necessary reasonably protect public such added.) (Italics condition.” dangerous or defective Although wording clear from the the statute that dangerous be liable for a or defective condition cannot authority remedy public of a street or unless it has condition, contend v. plaintiffs the cases Shea Bosqui City Bernardino, 365], P.2d San Cal.2d 547], Bernardino, 2 v. Cal.2d 747 P.2d San Cal.App.2d 45], County Orange, Rose municipality power establish even if a is without the rule that condition, it is under a correct a defective request duty to those with the warn of its existence or necessary agree remedy it. We with this cannot contention. system Bosqui part
In the case a viaduct that was disrepair. The into streets was allowed fall commission, the railroad contended that under an order of utility passed operating which the viaduct railroad over *4 city’s duty holding the repair. had sole of Far from necessary authority pre- remedy was not a to the condition requisite Liability liability Act, the under the Public the did took care of commission court to note that the order deprive city viaduct or relieve the the control over duty remedy condition. the the The In ease a street a railroad track. Shea crossed dangerous contended caused condition was rails, of the elevation over commission which railroad jurisdiction. had The court held that the exclusive request duty to correct the condition under a the commission public danger. or to warn the right angles county In the ran at into a Rose case a road dangerous There highway state and terminated. was a ditch highway opposite end of the at the side the state county though road. The held even county court had bordering power correct no highway, persons warn on state was under county danger lying road at its end. examples
Both the Shea and the Rose cases are thus county situations where which streets over or had dangerous by control were made conditions that the local governments cases, however, could not control. In both county authority dangers. least had at to warn of the They authority highways control over their own and warnings post along highways therefore to dangers those contiguous created conditions thereto. present
In case, however, the condition of the dangerous. did not make a danger lay wholly street The on the state If itself. had no remedy the condition of the where the acci dent occurred it cannot liable under the terms of the Public Liability Act for failure to do so.
Section 100 of Highways the Streets and Code, in effect in at time the accident happened, provided: “The public shall [state] have full [of works] possession highways. and control all State . . . The de- partment shall maintain existing traversable which is between termini of, approximately and on, any route included in the highway system. State ...”
Section 27 of provides the same in part: code general “As provisions used and in Divisions I and II of code, ‘maintenance’ includes: “ (a) preservation keeping rights way, type each of roadway, structure, facility, in the safe and usable condition to improved which it been con- has . . . structed.
“(b) necessary provision safety special conveni- ences and devices. . . . degree type “The highway, maintenance for each portion thereof, shall be in the determined discretion of charged taking with the thereof,
the authorities maintenance *5 558 moneys requirements and available consideration
into traffic therefor.” provides: 204 Section
" powers same and duties department shall exercise the respect with respect highways as with to State within cities highways.” to other State works, public provisions these the state
Under remedy dangerous or defective city, has “The city limits. highways on within the conditions state including “safety con degree type of and maintenance” determined the state veniences and devices” are be agency. is not liable for It follows that pro highways under these or defective conditions of state visions. power has contended, however,
It warnings of post 465 of the Vehicle Code to under section existing highways. section dangerous conditions on state That provides: Department Works, Public Division
“(a) State Highways, place maintain, placed or cause to and be shall highways its maintained, respect jurisdic- and under signs signals appropriate required hereunder, and as tion, may place and be respectively maintain, and cause to appropriate signs signals placed maintained, and such and necessary may as may hereunder, as be authorized be carry provisions to indicate and to out the of this properly upon highways. or to direct or warn traffic code, respective jurisdictions in their “(b) Local authorities shall place placed or cause to and maintain be and maintained subject 466, signs and, provisions such of Section traffic semaphores stop signs, upon and such control devices streets may necessary carry highways and and to indicate provisions code or or to out of this local traffic ordinances guide regulate, warn or traffic.” Department provisions the of Public Under these State high duty post signs signals has traffic Works and on jurisdiction”; their ways “under local authorities “in signs jurisdictions” post such respective have signals highways. on 465 of Section streets foregoing the Streets Vehicle Code and the sections of Highways pari m be construed Code are materia must 509 (Ebert 502, together. California, v. State 33 Cal.2d People Trieber, 657, 28 1022]; P.2d Cal.2d 661 [171 706, 91, In P.2d 1]; Porterfield, P.2d re Cal.2d 675]; Com., Pac. Co. v. Railroad Cal. Southern 167 A.L.E. Department The State 2d possession “full and control” of all has Public Works highways Hy. 100) including & highways (Sts. Code, “State § (Sts. Hy. 204.) highways & Code, Such are within cities.” § *6 meaning jurisdiction” “under within the of sec therefore duty place and maintain tion of Vehicle Code. The signs signals required expressly and section the traffic that Department Moreover, on State of Public placed Works. only degree department type it is that determines the and that “safety including conveniences and of maintenance devices” highway. (Sts. Hy. Code, 27, 100.) & for each state It §§ jurisdiction highways follows that state are not within the of maintain, and local authorities to control or are therefore not respective jurisdictions” “in under their section Vehicle Code. highway, Department
To hold that state which the State possession of “full of,” Public Works has and control and for which that degree type determines the and of including maintenance, safety conveniences and devices, is jurisdictions” “in respective local authorities would [the] only a direct create conflict between codes, the two but would lead to anomalous and unreasonable results. Both (a) (b) provide subdivisions and of section 465 that the re- spective agencies place “shall and required maintain” the If agencies traffic control devices. or more two had the same mandatory duty, confusion they sought would result when discharge their duties over highway, the same and the uni- formity state, sought highway system be achieved (See be would defeated. Atlas Mixed Mortar Co. v. Burbank, 202 660, Cal. Moreover, P. placement signs signals and maintenance only of traffic part general duty to maintain streets highways in a safe and usable condition. Whether or not there is need signs warning signals frequently depend will on what may steps other be taken to render the safe and present In usable. case, instance, posting warning sign might would be adopted one several means that be apprise motorists of the Proper curve ahead. maintenance might danger altogether, eliminate the warning so that no necessary. would be It would be unreasonable to conclude Legislature that part intended that the limited of main- involving placement tenance maintenance traffic differently signs signals prob- should- treated from lem as a whole. however, contend,
Plaintiffs that both the allegedly dangerous correct authority and the terms of a contract between the under the whereby agency Works Department and the of Public city. Hy. delegated (See Code, 114, & Sts. §§ question with the allocation 116, 203.) The contract in dealt agreements gas funds and was a renewal of biennial tax substantially containing between the and the state dating provided same terms back to 1934. It substance on perform general maintenance work should exception highways limits with the all state within the main- question, 205. General here in and Route Route by the these be done state. tenance work on routes was to give proper that failure to Plaintiffs nevertheless contend accident, warning and that of the curve was the cause of the necessary warning signs should have installed the way right line line and or barricades between the curb for mainte- highway, ground responsibility terms delegated to under the area was nance this *7 provision That of the contract. provision a miscellaneous provided: highways from department
“The will maintain the State delegated hereby to the only. There is curb line to curb line and curb lines of the areas between the maintenance by department way lines, except operations the right when with the construc- being thereon in connection are conducted curb lines.” work between the tion maintenance however, provision that this contends, The lacking road the usual apply mountain intended to to a ordinary city It contends curbs and sidewalks of the street. beyond area the referring to maintenance of the also that might in mind as parties line the such maintenance curb necessary use, not such area itself safe be make the necessary to make might be within area as maintenance roadway and usable. the safe light of is read in the the is clear when the contract
It parties did not intend surrounding circumstances provisions to the section of Route quoted short apply city’s territory. The outlying corner of across an that cuts upon agreement imposing parties interpret their as did not 156. duty respect maintenance Route city any with the maintenance the state did all engineers testified that State the, highway including placing work on warning signs safety given and by devices. “construction the contract the acts and parties knowledge conduct of the of its terms, any controversy before has arisen meaning, as to its weight great will, reasonable, adopted entitled to when be by (Woodbine and enforced the courts.” v. Van Horn, 29 Cal.2d placed upon construction parties the contract present only case is not reasonable, contrary but a construction would be unreasonable. Route 156 is a road, lacking mountain the sidewalk area whose reasonably separated maintenance could from that of the roadway. Moreover, less than one twentieth of the mountain section of the lies within only limits. The access this section is from end, the road itself on either general character unchanged remains passes into and then out of the limits. It would be unreasonable to parties conclude that the intended that maintain the whole up to the limits, pavement then for the next fraction of a mile, and then resume whole, leaving maintenance of the to the responsibility for maintaining the borders of the road for the fraction of a mile in between.
Even if it assumed, however, that under the terms its responsible contract the maintaining beyond area portion the traveled highway, maintenance was defined and limited the contract. The provided: maintenance clause adequate
“Maintenance work keep shall be roadway, structures, and facilities the safe and usable condition to they which have been improved, provision constructed or shall be made for constantly making repairs pre- needed serve a smooth surface. satisfactory
“Maintenance work shall be department, any at time consider should the mainte- nance of the State portion routes or of the routes *8 unsatisfactory inadequate for the traffic needs and con- thereon, ditions and if the does not correct the unsatis- factory after due notice department, from the department may upon enter such State route and maintain such street with forces, its own and the will cost defrayed gas from the cent tax expenditure allocated for % upon highways city.” within State provision city’s
Under this of maintenance was structures, and keeping roadway, facilities limited to “the they have been con- condition to which the safe and usable duty and it lacked improved.” was under no It structed The and facilities. authority additional structures to add authority under the public retained the works beyond keeping the maintenance to determine when contract constructed to which it been highway in the condition satisfactory and necessary the routes to make improved was There is thereon. needs and conditions adequate for the traffic maintained the condi- Route 156 was not evidence that no time the improved at the which it was constructed tion to contract. under its maintenance duties city first undertook dan- the curve was contend, contrary, Plaintiffs warnings not were defective because additional gerous and having because, after responsible and that the provided provide condition, it failed knowledge of the Under, authority to do so. it had no contract, however, its them. would be purpose no must be reversed judgment Since denying the order considering appeal from served Accordingly, judgment. motion to vacate the defendant’s vacate denying motion to appeal from the order judgment is dismissed. reversed. judgment is
The J., Spence, concurred. Edmonds, J., and Shenk, J., CARTER, I dissent. J. has the state under the law (1) That majority hold: along warning devices right maintain traffic
the exclusive having power no highways therefore state do its failure to responsible for be held cannot maintain them authority under acquire such (2) That did so. proposi- either agree with I the state. cannot contract with tion. First, the two answers. proposition, there are
As to the first upon construed, confer both the correctly statutes signs. warning traffic right maintain the state Highways rely upon provisions of Streets majority “possession have full shall Code, state that which cities highways within without of all state and control” Or safety (Sts. them, includes devices. maintain which and shall do not 204.) provisions neces- Hy. 27, Those Code, & §§ exclusive, and at sarily the state’s mean in connection with devices, must be read least, warning to *9 465(a) Code. provisions the of the Vehicle Section first that state shall maintain such latter code states the appropriate signs may necessary as be to warn traffic. Subdi- (b) respective vision reads: “Local authorities in their then jurisdictions place placed and maintain or cause shall tobe subject signs provisions maintained traffic and, such stop semaphores section such signs, and control devices upon highways necessary may streets and be indicate to carry provisions and to out the of this local traffic code or regulate, guide (Emphasis ordinances or to warn or traffic.” added.) exception (§466) referred to deals with city signals the of traffic control stop erection such as a sign semaphore. authority or It will be noted that the of' a city “ highways” to extends “streets and within its boundaries. ‘highway’ way place
‘Street’ is a nature, of whatever publicly open maintained and to public the use of the purposes of vehicular (Emphasis travel.” added.) (Veh. Code, 81.) Thus, provisions where the two are § construed together, (Sts. Hy.& Code, and Veh. Code, supra) is, that provisions warning for state and local maintenance of devices, city both the clearly state and given are to signs. maintain such Indeed provisions of the Vehicle appropriately Code are more applicable, they expressly problems deal with safety precautions and the inherent traffic therein, general rather supervision than over highways. Second, it is clear obligation that the duty upon rested city request the state to signs, erect least, at authorize Having to do so. failed to do so, is liable. square That holding in Shea v. Bernardino, San 7 Cal.2d 365], dangerous There the existed in a street where it crossed Although railroad tracks. the Railroad Commission had jurisdiction exclusive over such crossings, the court held liable on two distinct theories. One, placed that the warning should have sign on its approach street at the to the crossing, and other, giving stated: “In appellant’s consideration to contention powerless remedy the defect the above-men- hypothesis tioned will be assumed Nevertheless, correct. impressive. contention is not It must be remembered improvement of streets within of a boundaries is an affair in which vitally interested. governing board and officers of municipality dealing may such an affair complacently they declare long powerless period years
were over a any steps take remedy condition that existed in defective principal city. one streets If the railroad com- jurisdiction mission exclusive to order the track north to be lowered it was the at some time during: six-year period upon to call the railroad commission to *10 order rail to obviously he lowered and thus to remove an ’’ dangerous (Emphasis added.) (Shea the street. Bernardino, supra, 692.) It San therefore follows of that the here is liable under the rule the Shea case. proposition by
On the second it is clear that the contract express provides its terms that the has control over and the duty maintaining highway of here involved insofar as the portion is (state) untravelled concerned. It states: “The highways from will maintain State curb line to line curb only.” warning The devices here involved would have been outside the line. It is curb indeed technical distinction to say, majority as that here, do the that means need may area outside the for such use keep the curbs safe as regard may be made of that area alone without to uses which warning signs of the between the curbs. The made necessarily city’s jurisdiction. are within the area under the warning signs. Therefore, placing so are the of such The word means, majority as the assert in the maintain as used therein opinion, safety forepart of its the maintenance of devices. indicating expression line, is from curb line to curb thus The highways where there is not in fact that the contract includes por From curb to curb line the travelled a curb. line means (In Ives, App.Div. tion of the re warning required If devices on the area N.Y.S. are warning right way purpose of outside curbs for the of suppose against therein, reasonable to that some defect it not is devices, while would have exclusive control of such jurisdiction over the same the state would have exclusive staying persons portion high area for on the travelled of the way. It would is obvious that the control said area using any portion highway. benefit those Indeed typical. warning the instant case is absent device would edge along right way be a white fence which safety using for persons would serve as a factor the travelled highway. testimony portion or untravelled engineers placing did all the state warning not mean devices does the state had ex right respective responsi clusive to do so. The duties by bilities of the state must be ascertained reading provisions and applicable the code' contract thereto. It provisions clear from these upon rested warning devices, the absent maintain liability was, therefore, the accident here involved established. experienced This case was tried before most able and trial judge jnry. and a Evidence that the accident result of a and defective condition of the highway is judgment almost free from conflict. The plaintiffs favor of affirmed unanimous decision of the District Court of (95 Appeal 83]). A.C.A. 438 That decision contains a clear and correct of the facts statement and the law appli- I adopt part cable thereto. it as a opinion this dissent. The Appeal prepared by of the District Court of Presiding Mr. Minor Justice Moore and concurred in Justices Emmet Wilson and Marshall MeComb follows:
“Appeals judgments against from six on verdicts appellant negligence in failing for its portion to maintain a of a state resulting in the persons, deaths of six from appellant’s denying order motion to set judgments. aside such “In sprawling city the far reaches Angeles Los region through the mountainous that lies to the west of that *11 highway—Route metropolis, a state along 156—lies a circui canyon generally tous road. While it extends in a westward through Topanga Canyon direction from Ventura Boulevard* to the 20 miles, Pacific Ocean about .86 of a mile only thereof city’s corporate within Along lies highway limits. this occupants an with proceeded automobile six night on the September 4, 1943. At a in curve road the did vehicle pavement, but, straight not follow the instead, continued on a plunged canyon course and 150 feet into the below. No one tragedy that viewed the survived to relate driving, who was speed or rate travel the direction in which the ear only was headed. The memento the dire event was the wreckage in depths burned the sullen below. Prom the evidences of the manner in pave which the machine left the gorge ment and tumbled into the applicable and from the by city’s presumptions, was established that reason negligence failing warning to maintain devices and bar along right way riers of Route 156 the decedent rushed their motorists deaths. asphaltic
“The road was pavement surfaced with concrete highway running principal *"A state to the north south. with shoulders of rock feet varying in width from At decomposed granite from 6 to feet width. and oil barriers, posts, no barri- accident there were of the scene warning devices. Neither blinkers, cats-eyes other cades, pavement ap- at the zigzag painted on the there a line was lines stripe A center of broken white proach the curve. approximately three months painted on road been had stripe a average life of 14 or months. such earlier. approximately per 5.5 cent and the curve had grade was curves above approximately 150 feet similar radius signs such as point of accident. Standard below the speed designated had ‘Winding Road’ and to a safe ‘Slow’ of the points at above and below the locus installed been was There some evidence that the road without accident. Command. proclaimed the Western Defense dimout area surviving against appellant, relatives some- “Actions city, to as the and the State of California times herein referred theory been commenced that were designed and the state had defectively permitted dangerous and to exist which defective conditions held accident. After the court at Sacramento caused the complaint did not a cause of that the amended state action state, against the action was dismissed as to that defendant. was transferred to the Thereupon, the cause court below aggregating $110,000 which, trial, after verdicts were entered city. against the grounds
“As “ for reversal the contends: (1) is a and under The boulevard involved state exclusive control of therefore the cannot neglect it. be liable for danger
“(2) complained of relates to the con- Since design agreement highway, main- struction and apply Topanga Canyon tain be held to Road. cannot “(3) not in Not appear defective condition but does not proximate was a cause of the accident. ‘‘ having (4) The trial commenced in been Sacramento Angeles County purpose to Los for the County, its transfer *12 resuming finishing prejudical proceeding error; and Superior Angeles County jurisdic- Court of Los had no try judgments. to the cases and tion enter
“City Liable General Law Under “The was instituted under instant action the ‘Public Lia- Deering’s 2 bility (Stats. 1923, 675; Act’ 1923 p. Gen.
567 5619.) provides 2 Laws, municipalities Act Section ‘. . . injuries . . resulting . . shall liable for . from . be the dan- highways gerous public streets, or condition of . . defective . all or governing managing cases where board of such liming . . . . . municipality remedy . to such con- knowledge dition, dangerous or notice had defective neglected condition . . . failed or ... remedy to such neglected ... condition or failed to take such action reasonably may necessary protect public. to . . .’ (Emphasis added.) liability imposed upon municipalities
“Under
the act
injuries
persons
property resulting
dangerous
to
from
public
highways
defective conditions
streets and
when
remedy
notice of the defect and
it.
has
fails to
(Watson
Alameda,
v.
219
331,
286];
Cal.
333
P.2d
[26
City
Arellano
Burbank,
248,
113].)
v.
13 Cal.2d
254
P.2d
[89
general
The
is that liability
only
rule
exists
not
defects
arising
improper
after construction but also for
construction
(George
in the first instance.
Los Angeles,
303,
v.
11 Cal.2d
723];
308
Atchison,
Ry. Co.,
P.2d
Sandstoe v.
T. & F.S.
[79
Cal.App.2d
28
216].)
219
escape
P.2d
In
order
[82
liability
must either
eliminate the
condi
public
protect
by adequate
tion or
warning, and the suffi
warning
ciency
question
of such
is a
of fact in each case.
(Bigelow Ontario,
Cal.App.2d 198,
v.
37
205
P.2d
;
298]
[99
Reedly,
Cal.App.2d 413,
Barsoom
38
v.
P.2d
[101
"
jury by
impliedly
danger
verdict has
found that
ous and
existed,
appellant
defective condition
remedy
notice thereof but failed
it.
Under the act there
precedent
remains
other
only
imposition
one
city.
liability
The case must be one in which
municipality
‘authority
remedy
has
condition.’
such
Appellant argues
high
did
exercise control
not
over
way
involved,
here
is not
therefore
liable under
act.
require
municipality
The act
that a
exercise control
does
imposes liability
over a
mu
highway; rather,
where the
nicipality
‘authority
remedy
has
and fails
condition’
language
to do so. The
of the Act of 1923 is sufficient au
thority
peril.
for the
under the
facts
remove
upon by appellant
authorities relied
on
pertinent
are not
point. They (Watson
City
this
v.
568
ciency
dangerous
of the notice to the cities
that a
involved
and defective
In
condition existed.
case the
instant
suffi
ciency
by
of the notice is attested
prior accidents at
place.
(Bigelow
same
Ontario,
204;
v.
supra,
Sandstoe v.
Atchison,
Ry. Co.,
T. & S.
“Appellant’s
not liable
municipality
contention that a
it
not
defective conditions over which
does
control is
If
supported.
exercise
failure to exercise
not
liability
purport
control were sufficient
whole
avoid
Liability
obviated
intent
Public
Act of
could be
simply by
by appellant
inertia.
are not in
The cases cited
point
applicable
because the
relieved the
specifically
statutes
municipalities
liability
they
were instituted
or because
against
Notwithstanding the
parties
municipalities.
other than
appellant
Act of 1923
last
contends
cited,
and the authorities
supervision
that it
‘has no
route
within
or control over
’
city
a
support
limits.
In
it cites number
of such contention
inspection
purpose.
of authorities which
close
fail of their
on
McGuire,
In
“For of the and maintaining certain highways, the state August, 1943, state determined about projects. effect certain In that month the and the state agreement entered a pertaining into written to the-mainte highways nance of certain state city, including within the compliance Route 156. In with section 203 of the Streets Highways Code, agreement provided the expenditure for the ‘ Department of $7,250 by portions the of Public Works.* The of highway state project (b) routes to be maintained under Topanga Canyon are described as Road, follows: “Route from junction limits about 2.70 miles north Route of 60 to Park; length ap north limits near Fernwood of ’ proximately portion.’’ 0.86 mile Department for this The of delegate authority jurisdiction Public did Works not entirety city. over specific Route 156 in its the ‘ heading: (b) reference to that under Work comes the ’ by the department. “ VI, agreement ‘Article Miscellaneous Provisions’ of the provides: maintaining ‘In the the work event of the state being by depart- routes within the is done the ment, approval the of be shall secured before any cut, encroachment on the surface or excavations or openings roadway permitted in vehicular The de- are partment highways from, will maintain the State curb line * expended high "The fund on the construction and of maintenance ways designated by is 'Motor Fuel Fund.’ It is levies Vehicle raised (Rev. per gallon gasoline of 6 cents on all fuel distributed in the state. Code, 7351, 8651.) pays & Tax. The state the State treasurer into $$ Highway (Ibid., 8357, 9302.) expended Fund. Such fund must §§ be highways. (Sts. Hy. 188.) Code, & for the of maintenance state § Department expend Public shall amount not than of Works an less per gallon from tax for revenue derived improvement one-fourth cent on such fuel highways (Ibid., of and maintenance state within cities. 203.) municipality may performance A § contract with the state corporate 202) respect limits, (ibid., of the work within its and in § proportion expenses improvement of such of maintenance of by respective parties, highway may a be located in borne and such city. part contracting within limits of the whole (Ibid., 130.) § hereby only. delegated is curb line There right way Vinesand maintenance the areas between curb of of . .
lines
.’
not
“Appellant
proposition
liable
advances
property
of
over which it does not
by any
city is
liable
If
chance the
under
exercise control.
cited,
Liability Act and the decisions heretofore
the Public
agreement
beyond
virtue of its
peradventure
it is liable
neglect
to maintain its streets in a
for detriment caused
reasonably
its contract with
safe condition. Under
In support
liability
appellant
of
is accentuated.
of its
Berlin,
Town
130 Conn.
thesis, the
cites
v.
Griffith
Ind.App. 229
City Covington,
v.
;
A.2d
Gardner
56]
830];
Township,
Plains
Pa. 391
N.E.
Brunacci v.
City
Opelousas, (La.App.) 13
329];
A.
Barnett v.
Ponchatoula,
(La.App.) 17
788; Glover
Town
So.2d
v.
Brownwood, (Tex.Civ.App.)
44;
So.2d
Gabbert
respect do
authorities apply.
344.
In no
these
176 S.W.2d
agreement
them
there an
between the
In none of
obligating
Public
the munici
Department
and the
Works
question.
pality
part
to maintain a
highways
all state
possession
“While ‘full control and
(Sts. Hy.
Department
Works’
&
Public
vested
State
Highways may
yet
Department of
Code,
100)
State
§
*15
delegate
any city
department’s powers,
the
duties and
to
any
any part
highway
(Ibid,
or
thereof.
as to
McGuire, 2
676;
Roads
v.
Southern
Co.
Cal.2d
§
California
115, P.2d
portions
the italicized
its
“Appellant
that
of
contends
parking
maintenance of sidewalks and
to the
pertain
contract
they
improved
which are
and that
along those
strips
streets
to a mountain road
reference
such
that
have no
can
only
right
portion of
Canyon ‘where the
the
of
Topanga
roadway
improved
designed
used is the
travel
so
way
’
by
for vehicular travel.
the
the State
But
maintained
language
clearly gives
unambiguous
of the contract
to the
obligation
portions
to
right and
maintain those
city the
extending
from
line
outward
the curb
to the
the
by
way
contract the
was in that
lines and
its
right
high-
obligated to
was essential to make the
do whatever
area
times.
the
reasonably safe
travel at all
That
trial
way
it
adopted
by
such thesis is evidenced
the fact
that
court
jury
pleadings
admitted that
the
instructed the
the
was authorized
maintain
areas
agreement
to
right
way
between curb lines and
lines. This instruction
appellant
copy
was correct
had attached a
agree-
since
part
Having
ment to its
as a
answer
thereof.
admitted the
validity
appellant
execution
of its own contract
position
significance
no
deny
plain
to
provisions.
of its
right
contract not
did the
acquire
“Thus
warning signs
upon
portions
to
and barriers
erect
those
paved
road
thereby
outside
but
its duties
Liability
enlarged.
Public
Act
under the
were
There is no
for appellant’s
basis
reasonable
contention that
it
lacked
power
do the acts
to
essential to
maintenance of the .86
highway.
mile on Route 156 as a safe
The fund under
Highway
was
control
Commission
available in sufficient
By
to
amount make it safe.
the contract
was re
quired
‘maintain
from
right
to
curb line
to
’
though
language
line. And even
way
of the contract
require
perform
did
the city
not
to
upon
paved
work
portion,
require
reasonable construction
appellant
would
paint zigzag
either
stripes
pavement
ap
to
white
on the
at
proaches
keep
to
curves
to
pavement
barriers outside the
dangerous
wherever a
condition existed
pavement
so near the
peril,
post warning signs.
as to be
to
Having
failed
do
things,
assuming
those
even
appellant’s
that
contention
power
it
lacked
authorization to do
it
so, was nevertheless
not
the responsibility
relieved of
persons lawfully
to warn
using
(Shea
that a
condition existed.
City
v.
Bernardino,
San
365];
7 Cal.2d
P.2d
County Orange,
Rose v.
“Maintenance argued warning next posting adequate “It that signs guards a matter erection and barriers is not of maintenance, agree but of construction and therefore require city ment did not such devices. The to erect to answer this contention is in section 27 of Streets found 572 Highways . .“maintenance” . . Code:'. includes . [t]he
necessary provision special safety conveniences and de ’ vices. ‘‘ Issues Other objection admitted
“Over evidence was to show efforts on part projects to induce state to construct portions 156 Route, on other out of the available fund. prejudicially Appellant contends that its admission was er roneous. The record discloses the evidence was admitted procedure show that such was available portion 156 procure improvement of Route here in That the was interested involved. parts an interest
other failed to take portion proper its evidence within own boundaries was jury to enable the to determine whether been improve delinquent public. in its Since ‘the ment of the boundaries of a is an affair streets within ’ vitally (Shea v. interested, in which the San 693) Bernardino, its take an interest supra, p. failure to therein elsewhere. No is best demonstrated interest requested appears why valid reason could not have requested from the to act and have gasoline its share of the tax fund with which erect such guard warning rails and would have removed the devices as trap if death which of the decedents. took the lives Even proved inadmissible, the evidence is not shown how was prejudice, prejudicial appellant’s cause, and without VI, error, any, (Const., art. ground if is not for reversal. 4½.) § “Damages Not Excessive
‘‘ Gillespie were not excessive. Ottie damages awarded youngest son, of her her $20,000 for the death awarded Gillespie, and minor Patrick the widow support. Ila and sole $30,000 for the loss of Doyle were awarded Gillespie, son proof of domestic value father. The the husband and jury’s appraisal matter for the infelicity their home The husband earned issues. as all other factual as well expectancy of Ila ex $3,000 per annum while excess of 18 minority of Patrick years and the ceeded exceeded. (See not excessive. to them was 'years. joint award P.2d Cal.App.2d Co., Southern Sherman Pacific Cal.App.2d Co., 812]; Weiand v. Southern Pacific Co., 17 Cal. McDonnell v. Southern ; P.2d 1023] Pacific Evelyn Oveso, Perez 201].) Petra App.2d 432
573 Bittner and Mr. and Mrs. Russell, Charles Smith were awarded $15,000 respectively for the deaths of their minor children. plaintiffs, ample proof In the case of each of these was adduced by showing parents the contributions the decedent to his and loyalty and his affection for them. On these matters findings jury in the absence of error are conclusive. Co., Hunton v. Portland 64 Cal.App.2d etc. 876 California 471], by appellant P.2d cited on excessiveness of [149 point. young the verdicts The father was and possibility successful businessman. The that the deceased supported son would ever have him was too remote. large
“A award the loss of a loved one does not in and prejudice itself establish that passion. it result of Compensation for loss be purchasing must fixed in view of the power of the dollar at the time of the by loss and not its power years ago. of 20 Today purchasing the dollar’s value in power is per not to exceed 60 cent of its value in 1940. The value of an award is not to be ‘estimated in the numerical quantum of recompense comparative but ability furnish the (O’Meara necessities of life.’ Haiden, v. 204 Cal. 354, 334, 366 P. 60 ; Allen, A.L.R. Butler v. 73 [268 Cal. 1381] App.2d 866, 867, 870 488]; Boehm, P.2d v. Brown Cal.App.2d 595, 49].) P.2d Not is loss in dollars and cents to be fixing considered in damages, but also loss of comfort, society protection. Therefore, yard no stick as to amount can (Holder Key be System, utilized. 88 Cal.App.2d In the instant case it cannot be said compensation that awarded the loss of minor unduly generous. child or husband
‘‘The Had Court Jurisdiction “Appellant’s final contention is that Superior Court Angeles County of Los jurisdiction was without try cause. originally action filed in county that but was removed to County Sacramento on motion of the state stipulated where was between plaintiffs and the state: ‘. .. that since said defendant present desires to to the above- entitled court the defendant’s contention complaint fails to state a cause of action, parties since both desire to determine point said without inconveniencing large number of witnesses preparing at this time for the trial cause, may entire be deemed that the first witness has been sworn and that the said defendant seasonably has objected to introduction testimony whatever on complaint fails grounds to state a cause of action California, and that
against the defendant State there- ’ argued and upon may matter submitted court. judgment objection of was sustained and a the state rendered. The was then dismissal the state cause trans- Angeles ground County ferred court to Los under subdivision 3 of section convenience witnesses Appellant of the Code of Procedure. asserts Civil actually County trial had commenced Sacramento improperly that it was therefore discontinued transferred *18 county. to another general prevalent practice upon to rule a de-
“It allegations. receiving Upon before evidence of murrer objection issue of law evidence the was the state’s sufficiency complaint. as to the Sacramento raised respondents’ merits of court did not consider the cause of against appellant simply but determined as matter action alleged complaint the second amended of law that facts against insufficient of action were to constitute cause finality ruling having adjudicated respond- That with state. against state, practice claims it was correct to deal ents’ though respondents filed the the matter action with only. against in the Sacramento court No at first proposition that the court for the pertinent is cited county not thereafter transfer the cause to another could could What else the Sac- the convenience witnesses. parties interested court done ramento have since Angeles County remaining in the of Los action were residents ? have denied the demand and their witnesses resided there To injustice litigants. all for removal been an would have duly appeal were con- presented by “All the issues this judge during course .of trial. sidered trial jurisdiction hearing question of on considered judgments. preju- No appellant’s aside the motion to set any judgment or in the appears respect error dicial judgments. denying appellant’s order motion to set aside judgments affirmed.” “The and the orders are judgments. foregoing, In view of the I would affirm Schauer, J., concurred. January denied petition rehearing
Respondents’ for a Schauer, J., voted for Gibson, Carter, J., 25,1951. J., C. rehearing.