Rodkey v. City of Escondido

SHENK, J.

The plaintiff sued the City of Escondido for damages for personal injuries. She was bounced from the back seat to the top of a sedan automobile in which she was riding and suffered an injury to her back. The jolt to the vehicle occurred while it was being driven in the daytime over a surface storm drain at the intersection of Fig Street and Grand Avenue in said city, on December 26, 1934.

The trial court found that the maintenance by the city of the storm drain was negligence which was the proximate cause of the injury and entered judgment for the plaintiff in the sum of $5,547.50. The defendant has appealed.

The automobile was being driven by the plaintiff’s grandson in an easterly direction on Grand Avenue towards its intersection with Fig Street. There were six persons in the car, three in each seat.. The trial court found that the car was being driven at a speed in excess of 25 miles an hour. It also found that the construction of the storm drain was such that it was not likely to be dangerous to automobiles being driven at a speed of 25 miles an hour. The area which the occupants were traversing was signposted as a residence district, and the vehicular speed limited therein was 25 miles an hour.

The drain was constructed as a saucer-shaped dip to permit the passage of storm waters from Fig Street across Grand Avenue. It was sixteen feet wide and graduated to a depth of six inches. It was 'visible to occupants of ears coming from a westerly direction for a distance of 125 feet. It had existed in the same condition for about three years except that for some time prior to the accident involved herein the road surface had sunk half to three-quarters of an inch at its easterly connection with the dip. This defect was not visible to ordinary vision. The court found that the city had had both actual and constructive notice of the dangerous condition of the surface drain.

The sufficiency of the evidence that the city council had either actual or constructive notice of any' dangerous character of the storm drain might be and in fact is seriously questioned. There was no evidence that any injury had occurred to anyone in the three years of the existence of the storm drain prior to the date hereinabove mentioned, although

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