Rowland v. City of Pomona

California Court of Appeal Nov 26, 1947 No. Civ. 16003Published

Before: McCOMB

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Holding. The court held that a municipality is liable for injuries resulting from a dangerous condition in a public street when it has constructive notice of the condition, and that the determination of whether such a condition is dangerous or whether a plaintiff was contributorily negligent is a question of fact for the trial court.

Issues

Was there substantial evidence to sustain the trial court's findings of fact?
Did the evidence establish that the city permitted a dangerous condition to exist under the Public Liability Statute of 1923?
Did the city have constructive notice of the dangerous condition?
Was the plaintiff contributorily negligent as a matter of law?

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Whether these facts created a dangerous or hazardous condition was a matter for the determination of the trial judge whose decision, supported as it was by substantial evidence in the instant case, is binding upon an appellate court.”

“The law is settled that a municipality, in the absence of actual knowledge or actual notice of a dangerous condition existing in its street, is presumed to have constructive notice thereof where such condition has existed for an unreasonable length of time”

“Even though plaintiff was familiar with an existing condition which was conspicuous and observable it was still a question for the determination of the trier of fact as to whether or not plaintiff failed to use ordinary care in his conduct.”

McCOMB, J.

From a judgment in favor of plaintiff after trial before the court without a jury and from an order deny

[624]

ing defendant’s motion for a new trial in an action to recover damages for personal injuries resulting from plaintiff’s falling in a gutter maintained in a public street by defendant city of Pomona, defendant appeals.

The evidence being viewed in the light most favorable to plaintiff (respondent) discloses these facts:

On August 26, 1945, plaintiff parked his automobile along the east curb of San Antonio Avenue, in the city of Pomona, approximately 100 feet north of its intersection with Fifth Street. San Antonio Avenue runs north and south. At the point where he parked his automobile, the curb was lowered to permit a driveway into the rear of the Fuller Rancho Market. One hundred feet south of the point where plaintiff parked, there was a pedestrian walk. San Antonio Avenue was designated as a part of the drainage system through the city of Pomona. The easterly side thereof had been constructed and paved with the intention that it should serve as a drain for waste water originating in orange groves located to the north and east of defendant city.

It had rained for three days approximately one week prior to August 26, 1945, and on the latter date there was a large area of sedimentary deposit in the east gutter which included slime and moss with about an inch of water running over the top of it. This condition had existed in the east gutter for four or five months prior to August 26, 1945. Plaintiff after parking his automobile alighted therefrom, and without paying any attention to the condition of the gutter stepped into it as he proceeded toward the sidewalk. His foot slipped from under him and his body fell to the pavement and he received personal injuries.

It is conceded that the city officials of defendant for many years prior to the accident had knowledge that waste irrigation waters flowed down San Antonio Avenue during the summer. It was likewise conceded that plaintiff had the same knowledge.

These four questions are presented.for our determination:

First:

Was there substantial evidence to sustain findings of the foregoing facts?

Rowland v. City of Pomona

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