Marton v. Jones

SHAW, J.

At the times in question defendant maintained around his premises and adjoining the sidewalk a fence constructed in part of barbed wire, contrary to a city ordinance of the city of Los Angeles. Plaintiff,- while in 'the exercise of due care, was walking along the sidewalk and stepped upon a pebble thereon, which caused her to fall, and, in falling, threw her hand out, striking a sharp-pointed projection of the barbed wire so maintained as a part of the fence, as a result of which she received injuries for which, in this action, judgment was rendered in her favor, and from which defendant has appealed on the judgment-roll.

[1]

There was no abuse of discretion on the part of the court in permitting plaintiff to file an amendment to her complaint, substituting for the name “Mary Neff,” as plaintiff in the title of the original complaint, that of Mary Marton, which was her true name.

(McDonald

v.

Swett,

76 Cal. 257, [18 Pac. 324].) In no event could defendant have suffered any prejudice by the ruling. (Code Civ. Proc., sec. 475.)

[2]

While not alleged in the complaint, the court found that plaintiff was the wife of J. D. Marton, from whom, by reason of his deserting her, she was living separate and apart. Complaint is made that such finding is not within the issues and without support of evidence. Conceding this

[301]

contention well founded, nevertheless the finding is immaterial and without prejudice, for the reason that, under the provisions of section 370 of the Code of Civil Procedure, plaintiff, though married and living with her husband, was entitled to sue for damages due to personal injuries sustained, without joining her husband as plaintiff.

[3]

Appellant’s chief contention is that the conceded negligence of defendant in maintaining the barbed-wire fence on his premises in proximity to the sidewalk in violation of the ordinance