Mora v. Favilla

BEASLY, J.,

pro tem.

The plaintiff was injured by slip- . ping and falling on a steep sidewalk in the city of San Francisco. The sidewalk had been wetted by being washed by the defendant at 10 o ’clock on the morning of the accident, and it was claimed that the wet and slippery condition of the sidewalk caused the plaintiff to fall. By washing the sidewalk at that hour defendant violated an ordinance of the city and county which made it unlawful to wash a sidewalk between 8 A. M. and 6 P. M. The defenses were the legal contention that the ordinance was not designed for the protection of pedestrians on a sidewalk, but that its purpose was to conserve the water supply of the city, and hence, that it did not constitute negligence between the parties' here for the defendant to wash the sidewalk in violation of the ordinance; and, second, the allegation as a fact in the answer that the plaintiff was intoxicated when the accident occurred, and that this either caused or contributed to his fall. The jury found for the defendant. The plaintiff moved for a new trial on the grounds of insufficiency of the evidence to justify the verdict ; that it was against law; and of errors occurring at the trial. The court granted the motion without specifying its reasons. If, therefore, there is any good reason for granting it contained in the notice, the order will not be disturbed.

The trial court instructed the jury at length as to the bearing of this ordinance on the case, the gist of its charge on that subject being comprised in an instruction which read as follows: “The violation of an ordinance in and of itself constitutes and establishes negligence. Therefore, if the plaintiff in this case has satisfied you that the defendant here on the occasion in question violated that ordinance, then he has established negligence on the part of the defendant. And the

[166]

next question for you to determine would be whether such negligence on the part of the defendant directly contributed to and caused the injury that the plaintiff has suffered.”

This instruction correctly stated the law, which is so well settled in this jurisdiction as to need no citation of authority to support it. If the broad proposition of law so established in this state, and given to the jury by the trial court in this case, is to be changed or modified, it must be done by the supreme court. It is not the function of this court to change it. This being so, the trial court was justified in holding that the negligence of the defendant was established.