Wise v. Maxwell Hardware Co.

TYLER, P. J.

Action for damages for personal injuries. Defendant, a corporation, is engaged in the business of

[767]

selling hardware and other goods to the general public. It maintains a store in the city of Oakland, the main entrance to which faces on Washington Street, a busy retail district, and the merchandise in which it deals is received and delivered by trucks and other vehicles in front of such entrance. On December 23, 1925, about 12:30 P. M., a truck belonging to the Madewell Manufacturing Company, operated by one of its employees, arrived at the sidewalk elevator of defendant company with certain hardware to be delivered to it. The driver of the truck made his presence known to defendant’s receiving clerk, who was in the basement of defendant’s store at the time. Because of orders of the police department, requiring sidewalk elevators to be closed during the midday rush hours, and by reason of the fact that the streets were crowded with Christmas shoppers and also because certain employees of the company were absent, the driver was requested to put the goods on the sidewalk. Included in the merchandise so delivered was a pile of roof capping. It consisted of pieces of galvanized iron, Y-shaped, about 10 or 12 feet in length and 8 or 10 inches in height wired together. It was not crated or protected in any manner, and its color was almost the same as that of the sidewalk. The merchandise was placed parallel to the curb of the street and at a distance variously estimated at from 4 to 18 inches from the outer edge thereof. Between the hours of 1 and 2 o’clock P. M. of the day mentioned plaintiff was walking along the outer edge of the sidewalk within 18 inches of the curb when she tripped over the capping and fell, sustaining injuries consisting of contusions, lacerations, and a fracture of the bones of the forearm which required treatment for a period of over six months. The injury is permanent in character. Trial was had by jury, which resulted in a verdict for plaintiff in the sum of $3,000. Prom this judgment defendant appeals. As ground for reversal it is first claimed that defendant was not guilty of negligence as the mere placing of goods near the curb of a street for a short period of time constitutes neither negligence nor the creation of a nuisance and that there is no evidence to sustain the implied finding of the jury on these two questions. It is further claimed that even assuming there was negligence in leaving the roof