Fernald v. Eaton & Smith

KERRIGAN, J.

This is an appeal by defendant from an adverse judgment in an action for personal injuries sustained by plaintiff, a boy eight years of age, by falling into an excavation made by the defendant in Buchanan Street, between Union and Green Streets, in San Francisco, its motion for a new trial having been denied.

From the evidence introduced by the plaintiff it appears that just before the accident the plaintiff had been playing in the street near his home; that at about 6:30 o’clock he ran down the west side of Buchanan Street to meet his father returning home from work, and that upon reaching a point about the middle of the block he deflected his course and proceeded to cross the street, and while doing so fell into an unguarded ■excavation, sustaining the injuries complained of. The excavation had that day been made by the employees of the defendant in the digging of a trench for the purpose of laying a conduit line under a permit issued by the board of public works of the municipality.

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From a careful review of the record, it clearly appears that the evidence supports the verdict of the jury that the, defendant was chargeable with negligence. In the first place, this negligence may be predicated upon its remissness in observing the terms of an ordinance of the city providing that “Every person, firm or corporation by whom, or under whose immediate direction or authority, either as principal, contractor or employer, any portion of any public street may be made dangerous, must erect, and so long as the danger may continue, maintain around that portion of such street so made dangerous a good and substantial barrier, and cause to be maintained at both ends of such barrier, during every night, from sunset to daylight, a lighted lantern.” (Ord. No. 868, approved June 26, 1903.) Moreover, without regard to this ordinance, the plaintiff’s evidence established negligence on the part of the defendant in disturbing the normal condition of the street and leaving it in a condition unsafe for persons using it. Upon digging the trench, it was the plain duty of

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the defendant to take such precautions with respect to the excavation made as to avoid danger to users of the street, but the evidence shows that it failed to maintain a substantial barrier around at least that part of the excavation into which the plaintiff fell, which omission of itself under the law established negligence on the part of the defendant.