Noakes v. City of Los Angeles

MELVIN, J.

Defendants appeal from two certain judgments against them for damages and from the orders denying their motions for new trials.

The plaintiffs, who are brothers, were both injured August 14,1913, while at work in a trench excavated for the purpose of laying water-pipes in Sixteenth Street, in the city of Los Angeles. They were workmen employed by the defendant, Board of Public Service Commissioners of the City of Los Angeles. The other defendants were the City of Los Angeles, E. R. Flores, foreman in charge of the work, and the individuals composing the Board of Public Service Commissioners. Plaintiffs were nonsuited as to their asserted causes of action against the members of the board. The two complaints were essentially the same, the only differences arising from the fact as pleaded that one brother was more seriously injured than the other. There was a general demurrer to each complaint which was overruled in each case. Appellants contend that the court erred in failing to sustain the demurrers;

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in refusing to grant á motion for nonsuit in each case; and because of error in one of the instructions to the jury.

The complaint in each instance alleged, that the city was engaged in the business of selling and supplying water to its inhabitants; that the Board of Public Service Commissioners was the administrative branch of the government in charge of the water system; that on August. 14, 1913, said board was excavating a trench on Sixteenth Street and installing therein a main for use in its business of distributing water; that the plaintiff was working in said trench as a laborer and as a servant of the city and its said board, under the immediate direction and control of defendant, Flores; that while plaintiff was so employed the sides of the trench suddenly fell upon him, crushing and injuring him in a manner and to an extent specified; and 11 that .said injuries and damage and said falling of the walls of said trench were and are due to the negligence of defendants in failing' to take proper or any precautions to prevent said walls from caving in and in leaving them in an unsafe, insecure and dangerous con-dition.”

It is.contended that the demurrer in each case should have been sustained because of lack of averment in the complaint that the injury was the natural and proximate result of the negligence of defendants; because said pleading does not, if taken as true, show.that defendants failed to exercise reasonable care to provide a safe place to work; because it fails to set forth any facts showing that defendants knew or should have known with exercise of reasonable care that the place was unsafe; and because the “safe place” rule has not application in cases like these (citing in support of the last point,