Parcher v. City of Los Angeles

SHINN, P. J.

Prom a judgment on verdict of $10,000 for plaintiffs in a wrongful death action, defendant city appeals. Plaintiffs are the heirs at law of Ray L. Parcher who was swept from a bridge and drowned by storm waters. The suit is founded on Government Code, section 53051, on the theory that a storm drain under a highway was inadequate and created a known dangerous and defective condition.

The bridge is part of Sawtelle Boulevard in the city of Los Angeles, about one-half mile north of its intersection with Venice Boulevard. The storm drain runs south, along the east side of Sawtelle Boulevard, and then turns directly west to pass under the boulevard. In times of heavy rain the water overflows the drain and runs across Sawtelle Boulevard. At times this overflow covers the bridge and the roadway for some distance north of the bridge, and to a depth of 12 or 14 inches. At the drain crossing there is no sidewalk and little pedestrian traffic.

About 9:30 p. m. on the night of December 26, 1946, Ray Parcher and his son Wayne, who was driving, were traveling north on Sawtelle Boulevard. It was raining and storm water was overflowing across the bridge and the roadway north of the bridge. Two friends of the Parchers, Mr. Byers and Mr.

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Wier, were following in their own ear. The Parcher car was having mechanical difficulties and was pushed from time to time by the other car. As they approached the drain the roar of the waters could be heard. Ray Parcher, who was not familiar with the conditions, stopped his car, got out, and walked over to the bridge barefooted. He walked near the center of the roadway several feet from the guardrails and apparently was washed off the bridge by the force of the overflow water. While his father was walking out on the bridge Wayne Parcher went back to explain the delay to their friends. After his father disappeared, Wayne walked out onto the bridge. He felt the force of the current around his feet; he was barefooted, the surface of the bridge was slippery, and he held onto the guardrail.

Over a period of years other accidents of a similar nature had occurred at the bridge due to the rush of storm waters. Without denying that the inadequacy of the drain created a dangerous condition, the city contends that deceased was contributorily negligent as a matter of law in walking onto the bridge and he voluntarily assumed the risk which inspection of the conditions involved. Defendant urged these grounds upon motions for nonsuit, directed verdict and judgment notwithstanding the verdict. On appeal, defendant makes the same contentions, and in addition complains of an instruction given as to the presumption of due care on the part of the decedent, and one as to oral admissions.