McLaughlin v. City of Los Angeles

SHAW, J. pro tem.

Plaintiff, who was approximately 70 years old, was walking along Fair Avenue, an unimproved street in the San- Fernando Valley section of the city of Los Angeles, slipped on the edge of a hole in the street and fell, receiving the injuries for which he brings this action against the city. The jury returned a verdict in his favor and from the ensuing judgment the defendant appeals.

Defendant states as its first proposition in support of its appeal: “As a matter of law, it is not unreasonable for the City of Los Angeles to maintain an unimproved dirt road without a sidewalk in an outlying undeveloped industrial district which is also devoted to some residential use.” This proposition is irrelevant to the present case. Plaintiff does

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not complain of the absence of a sidewalk, but of the presence of a hole. His action is to be sustained, if at all, upon the statute of 1923. (Stats. 1923, p.

675;

Deering’s Gen. Laws, 1937, Act 5619) providing that “municipalities . . . shall be liable for injuries to persons and property resulting from the dangerous or defective condition of public streets, highways on conditions of notice etc., which we do not quote because no contention is made here in regard to them. Under this statute a city is liable for injuries resulting from the dangerous or defective condition of a public street whether it is improved or unimproved. A city is under no obligation to improve its streets, but it is bound to keep them all in a reasonably safe condition; subject to the conditions stated in the statute. Of course the impact of this duty may vary with the nature and location of the street, the traffic upon it and the character of its improvements. No claim is made by defendant that Fair Avenue was not, at the time and place of plaintiff’s accident, in a dangerous condition. It was an unimproved dirt road, on which there was a considerable amount of travel by loaded trucks, its surface was rutted and full of holes, many of which were a foot or more in depth, and after a rain these holes were full of water and so remained for some time. It had rained the day before plaintiff’s accident and there was water in the hole in which he fell.

The only other contention made by defendant is that plaintiff was guilty of contributory negligence as a matter of law. It appears without dispute that plaintiff had lived for several years on Fair Avenue about three blocks from the place where the accident" occurred, that he had often passed this place during that time and was quite familiar with the conditions there. At the time of the accident he was on his way home from work and was carrying some groceries which he had bought at a market on the way. He could have gone from the market to his home by another route along improved streets on which there were sidewalks, but he says this other route was longer. His usual route home lay over Fair Avenue and he followed it at the time of the accident. Fair Avenue runs north and south and at the place where plaintiff fell it is bordered by a fence on the east side. Along this fence there is, according to plaintiff’s testimony a strip of ground which is higher than the rest of the street and along which he could walk without any trouble even in time of rain. The accident occurred about 8:30 p. m., there were no street lights in the