Shipley v. City of Arroyo Grande

MOORE, P. J.

Plaintiff sued for damages for personal injuries sustained as a result of being struck by an automobile owned and operated by defendant, Opal Renfro. The latter having apparently lost control, her machine proceeded over and across a curb and onto the sidewalk, crushing plaintiff, a pedestrian, against an adjacent building.

The city’s demurrer to the amended complaint was sustained without leave to amend. From the ensuing judgment of dismissal comes this appeal.

The sole question for decision is whether a valid cause of action was, or could be, stated against the city with respect to a “dangerous or defective condition” of a public street under the .provisions of the Public Liability Act of 1923. (Stats. 1923, p. 675; 2 Deering’s Gen. Laws, Act 5619.)

The liability of a city for injuries to persons or property while lawfully on its public streets arises only in case such injuries result from the dangerous or defective condition of such streets. (Stats. 1923,

supra; Hanson

v.

City of Los Angeles,

63 Cal.App.2d 426, 428 [147 P.2d 109];

Miller

v.

City of Palo Alto,

208 Cal. 74, 75 [280 P. 108].)

While the amended complaint alleges that “by reason of the . . . dangerous and defective condition of said street . . . plaintiff was struck,” the pleading proceeds to recite that the driver’s “car did fail to halt at the curb of the sidewalk . . . but continued on and over said curb and sidewalk to strike . . . the plaintiff.” In her brief appellant says that “here there was at least a nominal- curb to delineate the sidewalk from the street. ’ ’ Not even a slope of the terrain is

[750]

alleged whereby a moving vehicle might accidentally proceed onto the sidewalk. The only attempt to allege a defective condition is that, at the point where the automobile went upon the sidewalk “the curb separating that portion of Branch street used for vehicular traffic from the portion . . . used for pedestrian traffic . . . did not at any time herein mentioned exceed two inches in height.” The pleading is therefore devoid of a statement of facts from which it may reasonably be inferred that a “dangerous or defective condition” existed on respondent’s street.