Clark v. City of Berkeley

DOOLING, J.

Plaintiff nappeals from a judgment of non-suit entered in favor of defendant city of Berkeley.

Appellant sued the city for damages, charging negligence in the construction and maintenance of a public sidewalk. She received personal injuries as a result of a fall caused by a defect in this sidewalk. The trial court being of the opinion that the defect responsible for appellant’s fall was a trivial one which did not as a matter of law create a dangerous and defective condition granted a judgment of nonsuit.

The incident out of which this action arose occurred December 29, 1953, at about 1:45 p. m. on a clear, sunny day. Appellant, a woman about 52 years old, left her home at 2243 Ashby Avenue, Berkeley, and proceeded to walk westerly on the sidewalk toward Shattuck Avenue where she intended to catch a bus to take her to her place of employment.

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After appellant passed Wheeler Street, which intersects Ashby Avenue, she walked to the curb to see if a bus was coming down Ashby Avenue in the direction she wished to go. There being no bus in sight, appellant turned and started again to walk toward Shattuck Avenue on Ashby. She had taken about four or five steps when she tripped and fell on the sidewalk.

Photographs of the sidewalk area where the accident occurred were introduced into evidence. These reveal a very poor general condition of the sidewalk and a general state of disrepair. Photographs were also introduced showing appellant with her feet placed on the sidewalk approximately as they were just before her fall. In these pictures she was wearing the same shoes she had on at the time of her accident. They were of a low, flat, wedge type sometimes characterized as “sensible.”

At the point where appellant fell one concrete slab of the sidewalk was raised about one-half inch over the level of the adjoining and contiguous slab. Prom the photographs in evidence and appellant’s testimony the toe of appellant’s left foot caught on the rise between the two concrete slabs while her right foot was on the higher slab of concrete, thus causing her fall.

Beverly Robinson, the 14-year-old granddaughter of appellant, testified that about two weeks prior to December 29, 1953, she tripped and fell over the same defect that caused appellant’s accident. She did not notify anyone of the fact that she had tripped at this place on the sidewalk.