Sischo v. City of Los Banos

PULLEN, P. J.

This is an action for personal injuries sustained by plaintiff from a fall in the City of Los Banos. As this is the second time this case has been before us we need not again repeat the facts which are very fully set forth in our opinion in

Sischo

v.

City of Los Banos,

26 Cal. App. (2d) 642 [80 Pac. (2d) 116, 1020].

Upon the first hearing plaintiff recovered a judgment which was reversed upon various grounds, one of which was that the injuries sustained did not arise from, or depend upon any unsafe condition in the sidewalk of the City of Los Banos, but was due to the slipping of the plaintiff upon tiling in a store entrance upon private property.

[718]

It was also there-held that the change of grade in the sidewalk was so slight that it became a matter of law as to whether or not the city was maintaining a public nuisance, and thirdly, that there was no testimony in the record showing actual notice to the superintendent of streets, whose duty it was to look after and maintain the sidewalks in the City of Los Banos, nor is there anything in the record from which constructive notice might be inferred. The evidence upon this point in the present record is not substantially different from that at the former hearing.

As to the first point in the former decision, that is, that the proximate cause of plaintiff’s fall and injury was the slipping on the wet tile entrance to the store, and not upon the sidewalk, the facts now before us are practically the same as then considered, except that in this appeal it was established that an additional 1 % inches of cement walk lay within the property line of the property owner.

The verified claim of plaintiff upon which this action is based alleged that he was injured “by slipping upon the entrance to the clothing store of F. H. Cronwell—and the public street in front of said clothing store ...’’. The trial court found that “plaintiff started to leave said premises by the front entrance; that while on the tile entrance or exit . . . plaintiff’s left foot slipped ■. . .