Baccus v. Kroger

California Court of Appeal Oct 26, 1953 No. Civ. 15569Published

Before: Bray

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Holding. The court held that while it was error to permit expert testimony regarding the safety of the sidewalk, the error was not prejudicial because the condition was obvious and the jury's verdict would not have changed. The court further held that the repeated use of the phrase 'dangerous or defective condition' in jury instructions was necessary and not erroneous given the nature of the claims against the co-defendant municipality.

Issues

Was it prejudicial error to permit expert testimony as to the unsafe condition of the sidewalk?
Was the use in 11 instructions of the words 'dangerous or defective condition' error?

Disposition. affirmed

Quotations verified verbatim against the opinion

“Obviously, whether the sidewalk was in a safe condition for pedestrian use was a question for the jury and not for an engineer.”

“While the admission of the above quoted testimony was error, we do not see how it can be held to be prejudicial in this case.”

“Reading the instructions as a whole we find no such effect.”

BRAY, J.

Plaintiff obtained a jury verdict judgment against defendant Kroger and the city and county of San Francisco in the sum of $4,000 for personal injuries suffered. Kroger alone appeals.

Questions Presented

1. Was it prejudicial error to permit expert testimony as to the unsafe condition of the sidewalk?

2. Was the use in 11 instructions of the words “dangerous or defective condition” error?

Evidence

No attack is made on the sufficiency of the evidence. Defendant. owns the premises at 19 Hoff Street, San Francisco. In 1907 he constructed a private garage and a driveway entrance thereto. This driveway crossed the sidewalk to the building which was contiguous with the inner edge of the sidewalk. Near the building there was a gradual decline extending from the sidewalk level to. a depth some 6 inches below that level. The sides of the depression thus created were vertical. Plaintiff and her husband were returning early in the morning from a ball. She stepped into the depressed driveway with her left foot. In attempting to step out the high heel of the shoe on her right foot caught on the edge of the decline. She fell, fracturing two bones of her right ankle.

Expert Testimony.

Plaintiff called a structural engineer, who qualified as an expert. He was asked, over objection, if the depressed driveway in the sidewalk was “good safe standard engineering practice in the design óf garages.” He replied, “In my opinion, it is not standard and safe construction.” When asked “why it is not safe construction,” he replied, “We

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have an abrupt drop in the sidewalk at a point where it would not ordinarily be anticipated or expected.” “If they were of very gradual slope, extended back some distance from the edge of the driveway so a person approaching that depression would walk down a gradual slope instead of coming to an abrupt drop, it would be much safer. ’ ’ In overruling the objection to one of these questions the court stated: “He is testifying as an expert, and, of course, you, the ladies and gentlemen of the jury, are to decide the facts of the case for yourselves.” Later the court gave the usual instruction concerning the function of expert testimony.

Baccus v. Kroger

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BRAY, J.

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