Campbell v. City of Los Angeles

28 Cal.App.2d 490 (1938) FRANK W. CAMPBELL, Respondent,

v.

CITY OF LOS ANGELES (a Municipal Corporation), Appellant.

Civ. No. 11837. California Court of Appeals. Second Appellate District, Division Two.

September 20, 1938. Ray L. Chesebro, City Attorney, Frederick von Schrader, Assistant City Attorney, and Leonard Husar and Bourke Jones, Deputies City Attorney, for Appellant.

Thompson & Thompson, Clifford H. Thompson and Winfield B. Thompson for Respondent.

McComb, J.

From a judgment in favor of plaintiff after trial before a jury in an action to recover damages for the wrongful death of plaintiff's son defendant appeals.

The essential facts are:

August 27, 1936, plaintiff and his wife took their three minor sons to a section of Griffith Park located near the northerly bank of the Los Angeles River in the city of Los Angeles. Their son Howard (the deceased) with his two brothers went to play in an excavation which had been made by the United States government in connection with certain work being done for the Los Angeles County Flood Control District. While the three boys were scratching their initials on the embankment adjacent to the excavation, the earth gave way, injuring Howard, with the result that he died shortly thereafter.

This is the sole question necessary for determination:

Did the trial judge commit prejudicial error in instructing the jury as follows:

"There is a presumption that Howard Campbell used ordinary care for his own safety."

[1] This question must be answered in the affirmative. The law is established in California that where the evidence [492] introduced by plaintiff discloses the acts and conduct of the injured party immediately prior to and at the time in question, the presumption of law set forth in the instruction quoted above is inapplicable. (Mundy v. Marshall, 8 Cal.2d 294, 296 [65 PaCal.2d 65]; Lindley v. Southern Pac. Co., 18 Cal.App.2d 550, 556 [64 PaCal.2d 490]; Varner v. Skov, 20 Cal.App.2d 232, 240 [67 PaCal.2d 123]; Engstrom v. Auburn Automobile Sales Corp., 11 Cal.2d 64 [77 PaCal.2d 1059].)