Southern Pacific Co. v. City of Los Angeles

LANGDON, J.

A hearing was granted in this case, after decision by the District Court of Appeal, Second Appellate District, Division One, in order that it might be considered and determined together with

Inyo Chemical Co.

v.

City of Los Angeles, L.

A. No. 14916

(ante,

p. 525 [55 Pac. (2d) 850]), this day decided. Both cases arise out of the same general event, the break in the Olancha division of the Los Angeles aqueduct on November 26, 1926. Both plaintiffs sought to recover damages alleged to have been proximately caused by the negligence of defendant city in the construction and maintenance of the aqueduct.

In the Inyo Chemical Company case, tried before the late Judge Strother, the court found that the defendant city was negligent, and that its negligence was the proximate cause of plaintiff’s injury. The District Court of Appeal, Fourth Appellate District, affirmed the conclusions of the lower court on the general issues of negligence and proximate cause, but

[547]

reversed the judgment and remanded the cause for a new trial on the issue of damages. This court has adopted the said opinion of the District Court of Appeal, and thus has approved the determination of the city’s liability.

In the instant case, the action was tried before the late Judge Engs. The court found that the defendant city was not negligent, and also concluded that the accident was caused by a cloudburst of such unprecedented violence as to constitute an unforeseeable superhuman cause or act of God. Judgment was rendered against the plaintiff, and was affirmed by the District Court of Appeal, Second Appellate District. Thereafter a hearing was granted in this court.

Upon the hearing of these two cases, we were presented with thorough briefs analyzing and comparing the causes in detail from the point of view of pleading and evidence. We have carefully examined these briefs and have reexamined the earlier ones, and the conclusion is inevitable that the eases are in a practical sense identical. There were some differences in the personnel of tjie witnesses called by the parties, and in the manner of presenting the evidence. Thus, in the Inyo Chemical Company case, there was detailed testimony as to the amount of curvature in the aqueduct and the grade thereof at the general area of the break, while in the instant case the references to this point were more general. In the Inyo Chemical Company case the pleadings charged specific acts of negligence in some detail, while in the instant case the allegations of negligence were general in character. In the Inyo Chemical Company ease, two expert witnesses were produced by the plaintiff who testified that it was not good engineering practice to leave the aqueduct open at a place such as the one where the break occurred, without providing means for carrying away drainage water and debris. In the instant case the opinions of defendant’s experts were challenged by evidence of the actual conditions at the place of the break, together with the history of previous rainfall and fills in the aqueduct. But aside from these few differences which would naturally occur in the trial of a cause by different counsel for different plaintiffs, the theories of negligence and proximate cause, and the proof offered in support of them, were substantially the same in each case. The known facts as to the surrounding area, the construction of the aqueduct, the place