Alves v. Lopez

California Court of Appeal Apr 28, 1958 No. Civ. 17694Published

Before: Dooling

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Holding. The court held that the trial court properly granted a nonsuit because the plaintiff failed to produce sufficient evidence to support a logical inference that the debris causing her fall was cement left by the contractor, and the absence of warning lights was not a proximate cause of her injuries.

Issues

Whether there was sufficient evidence to support a finding that the contractor negligently left debris in the street.
Whether the absence of warning lights on the barrier was a proximate cause of the plaintiff's injuries.
Whether the property owners or the city could be held liable for the plaintiff's injuries.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The absence of warning lights on the barrier was not a proximate cause of appellant’s injuries, since she saw the barrier and started to walk around it.”

“There is no substantial evidence from which the jury could draw a logical inference that the unidentified debris on which appellant stumbled was broken cement left in the street by the contractor.”

DOOLING, J.

Plaintiff appeals from a judgment of non-suit, claiming that as to defendants A. A. Lopez, John and Mary Katsinis and city of San Jose sufficient evidence was introduced to take the ease to the jury.

Lopez is a cement contractor who was engaged by Mr. and Mrs. Katsinis to repair the sidewalk in front of their property in the city of San Jose. On the night of September 29, 1953, plaintiff was walking along the sidewalk from her home adjoining that of the Katsinises when she observed a barrier across the sidewalk which Lopez had repaired. It was dark and there is evidence that there were no warning lights of any kind in the vicinity. Plaintiff went into the street to walk around the barrier. Her foot struck something hard and she fell and injured herself. She could not tell what her foot struck but as she was attempting to get up she felt

[707]

debris under her hands. She could not determine the nature or extent of this debris.

It is appellant’s theory that sufficient evidence was produced before the jury to support a finding that this debris was broken cement from the old sidewalk which had been removed by Lopez and negligently left in the street.

Only two witnesses gave any evidence of seeing broken cement in the area. A Mrs. Texeira testified that on that evening, when there were no workmen about, she saw ‘ ‘ cement broken up. ... I just saw the broken pieces and I saw those barricades there.” She did not testify specifically that any of the broken cement was in the roadway. On cross-examination this witness gave the following testimony:

“Q. So that when you came by and there wasn’t anyone there, that area was fairly cleaned out, wasn’t it? A. I—I couldn’t swear to it, that it was cleaned or not,—all cleaned out.

“Q. But as you now recollection [sic], it was cleaned out? A. I wouldn’t say for sure because I don’t want to lie. There might have been a lot of rocks and little stones around there and pieces of cement, but I couldn’t swear to it.

“Q. In other words then, you are not sure whether there was anything there or there wasn’t, is that right? A. That is right.”

Alves v. Lopez

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DOOLING, J.

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