Marton v. Jones

186 P. 410 | Cal. Ct. App. | 1919

At the times in question defendant maintained around his premises and adjoining the sidewalk a fence constructed in part of barbed wire, contrary to a city ordinance of the city of Los Angeles. Plaintiff, while in the exercise of due care, was walking along the sidewalk and stepped upon a pebble thereon, which caused her to fall, and, in falling, threw her hand out, striking a sharp-pointed projection of the barbed wire so maintained as a part of the fence, as a result of which she received injuries for which, in this action, judgment was rendered in her favor, and from which defendant has appealed on the judgment-roll.

[1] There was no abuse of discretion on the part of the court in permitting plaintiff to file an amendment to her complaint, substituting for the name "Mary Neff," as plaintiff in the title of the original complaint, that of Mary Marton, which was her true name. (McDonald v. Swett, 76 Cal. 257, [18 P. 324].) In no event could defendant have suffered any prejudice by the ruling. (Code Civ. Proc., sec. 475.)

[2] While not alleged in the complaint, the court found that plaintiff was the wife of J. D. Marton, from whom, by reason of his deserting her, she was living separate and apart. Complaint is made that such finding is not within the issues and without support of evidence. Conceding this contention well founded, nevertheless the finding is immaterial and without prejudice, for the reason that, under the provisions of section 370 of the Code of Civil Procedure, plaintiff, though married and living with her husband, was entitled to sue for damages due to personal injuries sustained, without joining her husband as plaintiff.

[3] Appellant's chief contention is that the conceded negligence of defendant in maintaining the barbed-wire fence on his premises in proximity to the sidewalk in violation of the ordinance (Orcutt v. Pacific etc. Ry. Co., 85 Cal. 291, [24 P. 661]) was not the proximate cause of plaintiff's injury. This contention is based upon the assertion that she would not have come in contact with the barbed wire if she had not fallen, and she would not have fallen but for the pebble on the sidewalk upon which she stepped; therefore, it is argued, the pebble and not defendant's negligent act was the proximate cause of her injury.

While the existence of the pebble on the sidewalk was an intervening contributing cause of the injury, nevertheless such fact should not exempt defendant from liability, if, according to the usual experience of mankind, the consequence ought to have been anticipated as a probable result of his negligent act. As said in Lane v. Atlantic Works, 111 Mass. 136: "The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen." To the same effect is Roots Co. v. Meeker,165 Ind. 132, [73 N.E. 253]. Hence the negligence predicated upon the agency responsible for the existence of the pebble upon the sidewalk cannot relieve defendant from liability for the injury sustained by plaintiff, unless it appears so remote and disconnected in time and nature that it can be said the damage occasioned was in no way a natural or probable consequence of his wrongful act in maintaining the unlawful fence. (Merrill v.Los Angeles Gas etc. Co., 158 Cal. 499, [139 Am. St. Rep. 134, 31 L. R. A. (N. S.) 559, 111 P. 534].) [4] To find fruit peel, leaves and twigs from overhanging trees, pebbles, and other foreign substances upon sidewalks is a matter of common experience, and that such a condition might cause a pedestrian to slip or fall, in which event he probably would be injured by the barbed wire, was a consequence which defendant should have anticipated as likely to result from his negligent act.

The judgment is affirmed.

Conrey, P. J., and James, J., concurred.