Sinclair v. City of Pasadena

DORAN, J.

—This is an appeal from a judgment notwithstanding the verdict.

[721]

The facts briefly are as follows: In the early morning of May 6, 1934, at or about 2:30 A. M., decedent, the son of plaintiffs, appellants herein, was driving his automobile south on Allen Avenue in the city of Pasadena, on the proper side of the street, about midway between the center of the street and the curb and at a moderate rate of speed, when his car collided with a sixteen-ton steam roller. Allen Avenue is sixty-four feet wide between curbs. The steam roller, which was seven feet wide over all, was left standing for the night four feet from the curb, thus blocking the street, so far as automobile traffic was concerned, from the curb into the street,—a distance of eleven feet. Five or six red lanterns were placed on the street in a row along and parallel to the side of the steam roller nearest the center of the street. As to whether any lanterns were placed at the end of the roller as a warning to approaching traffic, is in dispute. The street was not lighted, and pepper trees along the side of the street overhung the steam roller to some extent. In particular it is emphasized in this connection that no barriers were placed in the street as a warning of danger and that the lanterns not only were inadequate but located in such a position that they would appear to approaching traffic to indicate merely an opening in the surface of the street with an open space for safe travel on either side thereof.

It is contended by appellants that under such a state of facts a dangerous condition existed in a public street which was actually or constructively known by a person authorized to remedy the same within the meaning of section 2 of the Public Liability Act. (Stats. 1923, p. 675; Leering’s Gen. Laws, Act 5619.) It is conceded that this was a matter for the jury to determine, but, at the same time, respondent emphasizes the fact that the power of the court to direct a verdict exists when there is no substantial evidence to support a verdict in favor of plaintiff if such a verdict were returned.

Moreover, as pointed out by respondent, and as the record reveals, the steam roller had been used in connection with the repair of streets in the vicinity of the accident since April 23d. At night and occasionally during the day it was parked at about the location where the accident occurred. On May 4th and May 5th it was not used. It was parked four feet out from the curb because the concrete gutter was not strong enough to sustain it. It was further established that the three individuals who had actual notice of the al