Lewis v. County of Contra Costa

WOOD (Fred B.), J.

Plaintiff was injured when, in crossing a public highway, he jumped over a mud filled gutter onto a mud covered sidewalk, slipped and fell.

He joined Earl Smith and the County of Contra Costa as defendants: Smith because, allegedly, excavations on his nearby land loosened the soil which was carried down to and onto the sidewalk and highway by the surface run-off whenever it rained; the county, because it allegedly suffered the alleged nuisance on Smith’s land to continue unabated and failed to remedy a dangerous and defective condition in the highway.

Verdict was for the defendants and plaintiff has appealed. He claims insufficiency of the evidence, error in the admission of evidence, and error in the giving and refusing of instructions.

(D

The evidence amply supports the verdict,

viewed either as a case of assumption of risk or of contributory negligence.

Plaintiff, a mail carrier of many years’ experience, was delivering mail afoot. He had been “zigzagging” back and

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forth across the highway in making deliveries.

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He had been proceeding in this fashion along Canyon Road for some distance without difficulty until, at his next crossing (not at a street intersection; it was in the middle of a block), he encountered an area where wet mud filled the gutter and covered the sidewalk along the front of three or four 50-foot lots. Instead of going around this area he jumped across the gutter onto the sidewalk, skidded and fell. He admitted that he knew he was jumping on mud and knew the mud would be slippery.

(2)

Was it prejudicially erroneous to admit evidence that at the time of the accident plaintiff had accumulated sufficient sick leave to cover the period of his disablement?

It was error to admit this evidence over plaintiff’s objection. The general principle is that damages recoverable by an injured party cannot be reduced in the amount of payments for his loss from a source wholly independent of the wrongdoer. Thus, in