Allen v. City of Los Angeles

MOORE, P. J.

From a judgment after order sustaining a general demurrer to the complaint without leave to amend, plaintiff appeals.

The complaint alleges that prior to Decemner, 1938, the city commenced the construction of a storm drain within an alley, which intersects Indiana Street, 150 feet west of Lincoln Avenue, both public highways in the city of Los Angeles; that such construction required an excavation across the sidewalk, along the side of Indiana Street; that a board bridge was built across the excavated portion of the sidewalk; that “in the construction and building of said board bridge the defendants caused same to be built by the laying of boards across said excavation the top of which boards were of even height with the top of said sidewalk and that said boards were so laid and nailed in place by the defendant without due or any regard for the protection of people using said sidewalk and said bridge and carelessly and negligently caused to be placed across said sidewalk and bridge at each end where said bridge met said sidewalk a timber which was approximately 2 inches thick and 6 inches wide and which timber of said dimensions at each end of said bridge where it met said sidewalk were securely nailed and fastened, said 2 timbers each extending clear across said sidewalk and caused an obstruction to be in said sidewalk which was raised 2 inches above the level of said sidewalk and above the level of said bridge; . . . that said obstruction above described was not guarded or protected by any warning signs, barriers, lights or signals of any kind or nature whatsoever”; that

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upon such bridge was a dangerous and defective condition for all pedestrians; it was not guarded or protected by any signs, lights or barriers; that defendant had notice and knowledge of the existence of the dangerous condition but failed to remedy the same within a reasonable time; that on December 24, 1938, at 9 o ’clock P. M., while passing along the sidewalk and without any knowledge that the obstruction was upon the bridge, and no barrier or light being at the point, plaintiff caught her foot on the obstruction and was thrown violently upon the paved sidewalk and sustained injuries, which were described.

The city’s liabilty for plaintiff’s injuries is predicated upon the provisions of the Public Liability Act of 1923 (Stats. 1923, p. 675; Deering’s Gen. Laws 1937, Act 5619). That act makes a city liable for injuries to persons “resulting from the dangerous or defective condition of public streets and highways” etc., where the governing board of the city, after notice or knowledge of such condition, fails for a reasonable time to remedy such condition. From an examination of the numerous decisions which have considered the question of liability, under the provisions of the above act, it is evident, as we have heretofore held, “that as a general rule, it is a question for the jury to determine whether the defect in the sidewalk or street is of such a nature as to render the city liable.”