WILBUR, J., Concurring.
I concur in the judgment of reversal. By Ordinance No. 1035 of the city and county of San Francisco, it is declared unlawful for any person to wash or cause to be washed any sidewalk or street, with a hose or otherwise, between the hours of 8 o’clock A. M. and 6 o’clock P. M. It was conceded by the defendant that some time between 9 and 10 o’clock A. M. he washed down the sidewalk in front of his premises using a hose for this purpose. The court correctly instructed the jury in instruction No. 8: “Hence such act was in violation of the ordinance, and that violation constitutes negligence in and of itself. In order, however, for any plaintiff who brings an action to recover damages for injuries sustained or alleged to have been sustained on account of the injuries suffered, it must appear that the injuries suffered resulted from negligence on the part of the defendant, and that such negligence was the immediate and proximate cause of the injuries of which plaintiff complains. Now, the plaintiff in this case has established, concededly, violation of the ordinance. That of itself was
[208]
negligence on the part of the defendant. Now, then, in order to enable the plaintiff, however, to recover upon that ground, it must appear that the violation of the ordinance directly contributed to the plaintiff’s injury.”
The court instructed the jury to the same effect in instruction No. 1 and in instruction No. 2. By instruction No. 1 the jury were informed that a violation of the ordinance constituted negligence and that if they found “that the plaintiff slipped and fell by reason of the wet condition of the sidewalk so caused by the defendant and that the plaintiff thereby broke his leg that your verdict should be for the plaintiff for such amount as you believe from the evidence the plaintiff is entitled to.” Instruction No. 2 was to the same effect, concluding as follows: “And thereby caused the same to become wet and that by reason of the wet condition of said sidewalk and without any negligence on his part, plaintiff slipped and broke his leg, your verdict must be for the plaintiff.” By instruction No. 3 the jury were informed that the negligence of the defendant, in order to justify a recovery, must be the proximate cause of the plaintiff’s injury.
Two defenses were relied upon by the defendant,—first, that the washing of the sidewalk was necessary by reason of the fact that the walk was dirty and greasy. The second, that the plaintiff was guilty of contributory negligence in that he was intoxicated, “and because of his intoxicated condition plaintiff failed to exercise ordinary care for his own safety. That during all of said times plaintiff was intoxicated, reckless, indifferent, and thoughtless as to the consequences of his movements.” That his injuries were received by reason of his intoxicated condition aforesaid and of his own recklessness, negligence, and lack of ordinary care.
With reference to the first defense: It appeared from the defendant’s evidence that he discovered the day before that boys were sliding down the sidewalks on greased hoards and as a result the sidewalk had become greasy and slippery. The next day, Sunday, he swept the sidewalk, washed it and scrubbed it. Defendant testified that he had completed the task of cleaning the sidewalk and that it had been completely cleansed and the dirt and grease removed more than twenty minutes before the accident happened; that the sidewalk was damp but not wet or slippery at the time of the accident.
[209]
Conceding that it is proper to show in defense of such an action that an act which is within the literal prohibition of the ordinance is nevertheless justifiable and excusable under all the circumstances, either because the act was not within the intent of the legislative body or because some higher obligation required it to be disregarded under the circumstances, it nevertheless appears that under the facts shown by the defendant the court should have held, as it did, that no such excuse or justification was shown and that therefore the violation of the terms of the ordinance was negligence
per se.
With reference to the question of contributory negligence: The defendant testified that the sidewalk was merely damp at the time of the injury, but the plaintiff, on the other hand, testified that the defendant was engaged in washing the sidewalk at the time he approached and was discharging water thereon from an inch and a half hose; that the sidewalk was very wet and slippery; that he took one step and found that the sidewalk was slippery and when he put his foot down for the second step he slipped and fell before he had an opportunity to retreat. The defendant, on the other hand, testified that he warned the plaintiff of the condition of the sidewalk and advised him to avoid the wet portion of the sidewalk; that plaintiff stopped and talked to him for some time and upon turning to leave suddenly fell and broke his leg. In this condition of the record the court gave instruction No. 5, defining contributory negligence as follows: “Contributory negligence is such an act or omission on the part of the plaintiff amounting to a want of ordinary care, as concurring or co-operating with the negligent act of the defendant is the proximate cause of the injury complained of, but to constitute a defense it must be affirmatively shown by the defendant, unless it has been shown by, or can be inferred from, the evidence of the plaintiff. ’ ’ The court also gave the oral instruction quoted in the main opinion. It might be inferred by the jury from this latter instruction that it was necessary for them to find that the plaintiff was intoxicated in order to find that he was guilty of contributory negligence, notwithstanding the fact that contributory negligence was defined in instruction No. 5 as a lack of ordinary care. If it was not negligence as a matter of law for the plaintiff to walk on a wet sidewalk where the conditions were perfectly obvious in broad daylight, where he had observed
[210]
those conditions and proceeded after such notice to walk upon the sidewalk, a point which we need not determine, it is clear that the defendant was entitled to definite instructions calling the attention of the jury to the law bearing upon that particular question. For this reason I think that instructions Nos. 13 and 15 should have been given. I am not certain that instruction No. 16 should have been given, because under this instruction the plaintiff might have been held negligent for failure to observe the condition of the sidewalk.
(Perkins
v.
Sunset T. & T. Co.,
155 Cal. 712, 722, [103 Pac. 190].) In view of the plaintiff’s testimony that he did observe that the sidewalk was wet and Avas being Avashed down by the defendant, the instruction was unnecessary and the matter was fully covered by instructions Nos. 13 and 15. I do not agree that instruction No. 16 should have been given. The defendant testified that he observed the slippery condition of the sidewalk about 3:30 P. M. Saturday. This was in ample time to have washed it off in the evening of Saturday or before 8 o’clock Sunday morning, and this opportunity to clean the sidewalk within the period authorized by the ordinance would render his efforts to do so by washing with water within the prohibited hours inexcusable, even if it be conceded that otherwise he would be justified after 8 A. M. Sunday in removing grease or dirt by the use of water. Moreover, the court will take judicial notice of the fact that other means of removing grease, not prohibited by ordinance, were much more effective for that purpose—gasoline, for instance.
Olney, 'J., concurred.