204 P. 224 | Cal. | 1922
The amended complaint alleged that defendant kept and maintained for her own use and benefit an area or vault under the sidewalk in front of and adjoining *791 her property in the city of Los Angeles; that in the sidewalk over and above said area or vault defendant kept and maintained light-wells consisting of iron grating and inlaid glass for her sole and exclusive use and benefit, for the purpose of supplying light to said vault and area and to the basement of her building standing upon her said property; that said light-wells were maintained by defendant in a negligent and dangerous condition in that large portions of the inlaid glass were broken out or chipped, leaving holes in the surface thereof, and that in other portions of the same the glass had been replaced with boards. It was further alleged that the defendant knew, or by the use of ordinary care or diligence should have known, of the condition of these light-wells; that plaintiff, while passing over and upon said light-wells, stepped into a hole in one of them, causing her to fall violently to the sidewalk, with the result that her left shoulder and her left hip were fractured and her nervous system seriously shocked.
To this complaint defendant interposed a demurrer, which was sustained without leave to amend, the plaintiff having declined to make further amendment. Thereupon judgment was entered for defendant, from which judgment plaintiff takes this appeal.
[1] Both parties agree that the sole question in the case is, whether, under the facts alleged, the defendant is responsible for the said injury sustained by plaintiff. The respondent contends that the complaint is insufficient because of the absence therefrom of an allegation that the board of public works of the city of Los Angeles had, prior to the accident, received notice of the alleged dangerous condition of the sidewalk, or that the defendant was ever notified by said board that the same was in a condition requiring repairs or reconstruction. This position is predicated upon the Vrooman Act and acts amendatory thereto, and Martinovich v. Wooley,
[2] Inasmuch, therefore, as the light-wells, as such, were, as we have seen, constructed for the benefit of defendant and her property and for a use independent of and apart from the ordinary and accustomed use of the sidewalk, the law casts upon her the duty, to be discharged with reasonable care, of keeping it in proper and safe condition. (Trustees etc. v. Foster,
Respondent in her brief refers to certain averments in her answer to the original complaint, to the effect that the sidewalk in question was constructed under the provisions of the Vrooman Act, March 18, 1885, and was accepted by the superintendent of streets of the city of Los Angeles, or by the board of public works, his successor. But such averments will not be considered when passing upon the demurrer to the complaint. As we view the liability of the defendant under the facts as stated in the amended complaint, it is entirely separate from, and independent of, the city, and the latter's obligation to keep the sidewalk in proper repair. It is an original responsibility resting upon defendant to keep the gratings and lights in a condition which will render the sidewalk, of which they form a part, reasonably safe for use by those who may pass over it.
We cannot concede that defendant, having knowledge of the dangerous condition of the gratings and their resultant menace to the safety of the general public, could shut her eyes to the necessity of repairing them until such time as someone was injured, and then avoid liability by pleading that she had not received the twenty-four hours' notice required by the Vrooman Act. In other words, under the facts of this case, the duty was, in the first instance, independent *794
of notice to or by the city, cast upon the defendant to repair the gratings. It is only where there is no liability whateveruntil service thereof that the notice we are discussing must be given. In the latter case the service of the notice lies at the very foundation of the liability and its enforcement, which is not the situation here. Moreover, an examination of the photograph attached to the complaint as an exhibit depicts the gratings apparently in a condition which might render them in their character "of the nature of a nuisance" (Barry v.Terkildsen,
We think the amended complaint stated a cause of action, and that the court below erred in sustaining the demurrer.
Judgment reversed.
Sloane, J., Wilbur, J., Lawlor, J., Lennon, J., and Shaw, C. J., concurred. *795