Lowe v. City of San Diego

HARDEN, J.,

pro tem.

Plaintiffs are husband and wife. On July 9, 1933, plaintiff Ruth A. Lowe was driving a model T Ford automobile in a westerly direction on Logan Avenue between Thirty-eighth and Thirty-seventh Streets in the city of San Diego. Logan Avenue is not paved at the place in question. An opening had been made in the street by defendant at a point about 14 feet north of the south curb line of Logan Avenue in front of 3761 Logan Avenue, to make repairs to a water service pipe. Thereafter dry dirt was placed in the excavation and damp dirt placed on top to a height of about five inches above the street level. Thus a pile of dirt was created. Said plaintiff had with her two other passengers in the automobile. All three persons testified that upon nearing the point of the accident they found the street occupied by children at play; that the driver turned to the left side of the road to avoid the children and thereby caused her automobile to run over the pile of dirt, by reason whereof it turned over on its left side. Her left arm was caught under

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neath the machine, was badly crushed, and as a result was amputated at a later date. She sued for damages amounting to $30,000, under section 2, Statutes of 1923, page 675. Plaintiff Harry S. Lowe sued for consequential damages amounting to $5,100. Upon a jury trial, a verdict was returned in favor of plaintiff Harry S. Lowe for the sum of $100 and in favor of plaintiff Ruth A. Lowe for $20,000. Upon proceedings on motion for a new trial, as a condition to a denial of the motion the court required plaintiffs to remit $6,000 of the judgment in favor of Ruth A. Lowe. The defendant has appealed from the judgment entered upon the verdict.

Appellant asserts that the proof does not sustain the implied finding of the jury that within 90 days after the accident said Ruth A. Lowe caused to be presented to the city auditor a claim of her demand against the city by reason of injuries sustained. (See. 110, San Diego Charter; sec. 1, Act 5149, Deering’s Gen. Laws, 1931, vol. 2', p. 2562.) A witness testified that on August 15, 1933, she presented and left at the office of the city auditor the claim in question; that it was allowed to remain there for a period of about three hour.s; that she.then took it away and thereupon filed it with the city clerk. The city auditor and deputies testified that they had no recollection of the presentation of said claim. There is no contention that the claim was not in proper form. Upon instructions which appear to have been entirely proper and to which no exception is taken, as to what would amount to a presentation of the claim, the jury decided the issue for plaintiffs. The evidence, if credible, was sufficient to establish a presentation of the claim.