Coffey v. City of Berkeley

MELVIN, J.

Plaintiff appeals from a judgment entered as a consequence of the sustaining of a demurrer to his complaint.

The action was for damages due, as alleged, on account of injuries sustained by plaintiff in an accident which resulted from the fall into Cordonices Creek of an automobile in which he was a passenger. The plaintiff in his complaint alleged that Cornell Avenue “at its point of intersection with Cordonices Creek, within the boundaries and limits of said city of Berkeley was in a dangerous and defective condition, in this, that said defendant with full knowledge of the condition of said Cornell Avenue had failed and neglected to erect or maintain any bridge or other structure over said Cordonices Creek, at said point of intersection with Cornell Avenue over and along which the public might travel; that said Cordonices Creek at the said point aforesaid, has a deep channel, to wit, about fifteen feet below the grade of said Cornell Avenue, and the banks thereof are steep and dangerous; that said defendant at all of the time herein mentioned failed to keep or maintain any signals, lights, or other warnings, to notify the public or persons traveling over and along said Cornell Avenue of the dangerous and defective condition thereof at the point above mentioned.” It is. further alleged that on a certain date, after dark, when the dangerous and defective condition of the street was not visible to persons passing along and over

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it, plaintiff and his companions in an automobile were, by reason of the dangerous and defective condition of said Cornell Avenue where it intersects Cordonices Creek, precipitated over the bank into the bottom of the creek; and that at the time of the accident Cornell Avenue was being carefully used by plaintiff.

The demurrer was both general and special. Respondent insists that no duty rests upon the defendant or its officers to build or maintain bridges either within its own municipal boundaries, or across a stream which is a boundary between it and another political subdivision of the state; and that it is not required by any law to maintain signals, lights, or other warnings of the natural dangers existing at the intersection of the avenue with the creek.

We are asked by respondent at the outset to take judicial cognizance of the fact that Cordonices Creek is not wholly within its municipal territory but is the boundary line between the city of Berkeléy and the city of Albany at the point of intersection with Cornell Avenue. (Stats. 1909, p. 1212.) We find no necessity for exercising the right invoked by respondent, because, even assuming that the allegations of the complaint bring the entire crossing of the street with the creek within the limits of the city of Berkeley, and treating the creek as a waterway intersecting the street within the city, we are compelled to agree with the views taken by the court below.