Cressey v. City of Los Angeles

McCOMB, J.,

pro tem.

This is an appeal from a judgment in favor of respondent after a trial by the court without a jury.

Viewing the evidence most favorable to respondent

(Ah Gett

v.

Carr,

3 Cal. App. 47, 48 [84 Pac. 458]), the facts in the instant case are:

The sidewalk on the Leeward Avenue side of the First Baptist Church in the City of Los Angeles is paved from the property line to the street curb with the exception of several areas in which trees were growing at the time the improvement was made. February 14, 1934, the civil works administration workers, under the direction of appellant, removed one of these trees, leaving an unpaved circular area four feet in diameter and three inches in depth. This space remained unpaved to and including April 26, 1934. During this period appellant’s board of public works, having authority to remedy dangerous or defective conditions in sidewalks, through its engineering department, maintained a street inspector whose district included the sidewalk in question. This inspector, legal holidays excepted, was engaged in covering the district continually during the period from February 14, 1934, to April 26, 1934. At noon on the latter date respondent, while standing on the northeast corner of Westmoreland and Leeward Avenues, was hailed by the driver of an automobile parked in front of the Leeward Avenue entrance to the church; whereupon she crossed to the southeast corner of the streets and then proceeded sixty or seventy feet easterly to the automobile. Respondent took one or two steps back from the curb, due to the fumes arising from the ear. The motor then started, emitting a large quantity of smoke; whereupon she took two or three more steps back and fell into the unpaved area left by removal of the tree and received personal injuries.

Appellant relies for reversal of the judgment on three propositions:

First: The evidence is sufficient to support the findings of fact.

Second: The appellant municipality did not have notice of the dangerous and defective condition existing in the sidewalk.

Third: Respondent was guilty of contributory negligence as a matter of law.

[747]