Callahan v. Theodore

SHINN, P. J.

This is an appeal by the city of Los Angeles from a judgment for $9,000 damages for personal injuries suffered by plaintiff due to a fall over a defective portion of a sidewalk. At the close of plaintiff’s testimony, a nonsuit was granted to all the other defendants. The case was tried to a jury, and the sole contention on this appeal is that the court erred in refusing to give certain instructions on contributory negligence which were requested by defendant.

The evidence, stated most favorably to plaintiff, is as follows. On September 21, 1952, at about 6:30 p.m., plaintiff, a 65-year-old widow, was being taken to dinner by a Mr. and Mrs. Mercer and their son at a restaurant on Beverly Boulevard near its intersection with Martel Avenue. The sun was going down but it was still light. Mr. Mercer parked his car on Martel, just north of Beverly, and the party proceeded to walk south along Martel toward Beverly. As the group reached the corner of Martel and Beverly, they started to turn east on Beverly. In the middle of the turn, Mr. Mercer saw plaintiff lurch and fall on her face. Immediately prior to the fall, plaintiff had been talking to Mrs. Mercer. Mr. Mercer testified that he went to plaintiff’s assistance and then noticed a triangular-shaped hole in the sidewalk, about 3 or 4 inches wide and about 16 or 18 inches long. He stuck his finger in the

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hole and estimated that it was over 3 inches deep. He was about 6 feet away from the hole when he first observed it.

Plaintiff testified that “I was talking to Mr. and Mrs. Mercer, and I glanced right ahead of me, just a casual glance, and I saw the sidewalk was—looked a little different, a little dark, but I certainly felt so secure. I felt that it was safe. . . . Before I fell, when I was a step or perhaps a couple of steps or a step and a half before I fell, I noticed an unusual—as I glanced over I noticed an unusual dark place, but I assumed that it was perfectly safe. It looked to me as I glanced at it that it had been repaired and was perfectly safe. ’ ’ She then caught her foot in the hole and fell, lurching forward on her face. On cross-examination, she added that although the area was dark, she did not notice any break in the pavement. She also testified that she owned glasses but never wore them, because even though she was nearsighted her vision was better without them.