Rawles v. Los Angeles Gas & Electric Corp.

JAMES, J.

Plaintiff Mamie Y. Rawles, in October, 1910, while alighting from a car on First Street, at Broadway, in the city of Los Angeles, placed her foot into a depression then existing in the surface of the street. As she did so her foot turned to one side causing a sprain to the ankle. She then brought this action against the defendant, the complaint charging that it was through defendant’s negligence that she was injured, because the latter had not repaired the street surface at the point mentioned after making an excavation therein. The jury by its judgment awarded her damages in the sum of one thousand five hundred dollars, from which judgment, and from an order denying its motion for a new trial, defendant has appealed.

It was shown in evidence that the defendant, a few days prior to the day upon which the alleged injuries were sustained by said plaintiff, caused a small excavation to he made in the street near the car-track, of about two feet by three feet in dimensions, for the purpose of reaching a gas-pipe.

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The earth was replaced in the hole thus made, also the rock surfacing, and on top of this was laid a square of asphaltum pavement which had been cut from the surface. At the time the refilling was made of the excavation the surface was left in an almost level state. Under the requirements of an ordinance of the city of Los Angeles, then in force, where excavations were made in the street, the person or corporation so making them was obliged to restore the surface to its original condition, or as nearly to that state as was practicable, but the surface paving was not permitted to be done until the earth and material in the refilled excavation had had time to settle. The ordinance of the city covering these matters was introduced in evidence. At the time the said plaintiff sustained the injuries complained of, the repaving had not been done, and vehicles and pedestrians had crossed over the spot. As to the depth of the depression there was some difference in the testimony, some of the witnesses stating that the. hole was from two to six inches in depth. A photograph was introduced in evidence, which it was testified had been taken on the morning following the accident. A copy of this photograph is attached to the record in the ease. It appears from an inspection of it that at the time it was taken a street-ear had stopped almost opposite the place, and the figure of a woman appears almost over the point of depression in the street, although this figure is very much blurred, owing no doubt to the fact that the person was in motion at the time the camera was being operated. Just why a photograph intended to illustrate the condition of the depression in the street should have been taken with other objects present, around and upon it, can only be conjectured. The fact that it does not present a thoroughly clear representation of the spot makes it important that the ruling of the court in restricting the cross-examination of plaintiff P. L. Rawles, the husband of the injured person, should be closely examined. The photograph was taken, as the evidence showed, on the morning following the evening of the alleged accident. Plaintiff P. L. Rawles was the only witness who gave testimony tending to establish that the depression, at the time the photograph was taken, was in the same condition as when his wife stepped into it and received her injuries. After testifying that the conditions were the same, he stated on cross-