Litch v. White

ANGELLOTTI, J.

This is an appeal by. plaintiff from a judgment for defendants in an action for damages for personal injuries, given upon sustaining the demurrers of defendants to his complaint and his failure to file an amended complaint.

The complaint substantially states the following facts: During the whole of the year 1906, the defendant Van Vlack was the owner and in the possession of a lot of land with a one-story building situated thereon, fronting on Broadway Street in the city of Chico, known as 218 Broadway Street, “together with that certain porch or .awning connected with said building and being approximately twelve feet in width and twenty feet in length and approximately fourteen feet above and extending over the sidewalk along Broadway Street at said place.” This property was within the limits of a fire district of said city lawfully created by the board of trustees thereof. The said “awning or porch . . . was not in or kept in a safe or substantial condition, but on the contrary, was in an unsafe and dangerous condition and was, and during all the said times continued to be in such an unsafe and dangerous condition as to menace and it did menace and was a menace to, the safety of firemen or any fireman required to go thereon in case of fire.” On July 23, 1906, a fire broke out near said premises of Van Vlack. Shortly thereafter, plaintiff, a member of the fire department of Chico, “was required to, and did in the exercise of his duties as such fireman and for the purpose of extinguishing such fire, go upon said porch or awning,” and while so upon such porch or awning, “because of and owing to the said unsafe, dangerous and unsubstantial condition of said porch or awning,” the same fell to the sidewalk beneath it, precipitating plaintiff down to and upon” the sidewalk beneath, injuring him seriously, to his damage,

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it is alleged, in the sum of twenty thousand dollars. There was an ordinance of the city of Chico, section 9 of which was as follows: “All awnings, porches, sheds or roofs in said fire district (the district including Van Vlack’s property) shall be kept in a safe and substantial condition, and wherever the same or any part thereof shall become dilapidated or be in a dangerous or unsafe condition, so as to menace the safety of pedestrians passing on the sidewalks or firemen required to go thereon in case of fire, the same shall be put in a safe state of repair on five days’ notice by the city marshal, and in case the owner or agent of said awning, porch, roof or shed refuses or neglects to so repair the same, it is hereby declared to be a nuisance and shall be abated or removed in the manner provided in section six of this article.” Said section 6 authorizes and directs the marshal to himself abate a nuisance, after five days’ notice to the owner, etc. During the whole of the year 1906, defendant White was the city marshal of said city, and the defendant United States Fidelity and Guaranty Company was the surety on his official bond as such marshal. “Notwithstanding said dangerous and unsafe condition of said porch or awning during said time, neither said owner, said Van Vlack, nor said Harry D. White, marshal of said city of Chico, because of their, and each of their negligence and failure to perform their duties in the premises, did anything whatever, neither gave nor served any notice, nor took, nor caused to be taken, any steps to repair, or cause the same to be repaired, or put in a safe or substantial state or condition, or removed or abated.”