Scharpf v. Union Oil Co. of California

JAMES, J.

Plaintiff brought this action to recover damages for personal injuries suffered by her as the alleged result of the negligent acts of defendant. Judgment in her favor for $2,500 was entered upon the verdict of a jury. An appeal has been taken from the judgment, and also from an order denying a motion made by defendant for a new trial.

Plaintiff on the day when she suffered her alleged injuries was riding in a vehicle termed in the evidence a light delivery wagon, to which was attached one horse. She was proceeding down Boyle avenue, in the city of Los Angeles, and where that avenue intersects at right angles with Seventh street she turned about the corner preparatory to traveling toward the center of the city on said Seventh street. As she made this turn the left wheel of her vehicle sank into a hole, which caused her to pitch forward violently and fall to the ground. She was a large woman and struck the ground heavily upon her shoulder and received a severe shock and other injuries. As she fell to the ground the horse became frightened and started forward, pulling the wheels of the vehicle across her feet. Prior to the day upon which the accident to plaintiff occurred a four-inch pipe-line belonging to de

[102]

fendant had been taken up from along Boyle avenue and across the intersection of that avenue with Seventh street, and the earth had been replaced in the excavation made in the course of that operation. The alleged negligence charged by plaintiff against the defendant consisted in defendant not having refilled said excavation properly and having left it in such a condition at the corner of Seventh street and Boyle avenue as to permit of the wheels of vehicles dropping down to a considerable depth in the earth which had become wet and soft. It was admitted by defendant that it was the owner of the pipe-line which had been taken up as described, that it had caused an excavation to be made for the purpose of removing the pipe, but it alleged that the earth had been properly refilled and tamped so as to leave the roadway in a good and passable condition. There was some difference between the testimony of certain of the witnesses as to whether the hole into which the wheels of plaintiff's vehicle sank was in the line of the refilled pipe ditch, or at some other point in the street, but by this difference a question of fact was presented to be solved by the jury and this court cannot review that matter. Appellant has suggested, among other contentions which it makes upon this appeal, that the uneontradicted evidence showed such negligence on the part of the plaintiff contributing to produce her injuries as to bar recovery therefor. We do not think that, as a matter of law, it can be said that plaintiff was guilty of any contributory negligence. She described the condition of the street as it appeared to her at the time, and also testified that the pipe ditch was filled with mud and water. She said that she was obliged to cross this soft portion of the roadway in order to turn down Seventh street, but that the point where she turned “looked like a mud puddle.’’ She then said: “I could see that mud. I couldn’.t see how deep it was. It was soft mud in it. My right wheel got across all right, but the left wheel stuck in. It must be a weak spot what didn’t have enough dirt in it.” There was nothing presented to plaintiff’s view, so far as the testimony in the record shows, by which she should as a reasonable person have apprehended the dangerous condition of the pipe ditch; no warning had been erected to give her notice that the soft condition of the surface continued to the bottom of the excavated part of the street, and it was shown that she had