Granucci v. Claasen

RICHARDS, J.

This appeal is from a judgment in favor of the defendants after a directed verdict given and made by order of the court on motion of the defendants at the close of the trial. The action was one to recover damages for injuries sustained by plaintiff while walking upon a wooden driveway superimposed upon the sidewalk in front of the property owned by the defendant Mary J. Claasen, and at the time of the plaintiff’s injury and for some time prior thereto being used by the defendant John H. Claasen, Jr., as the lessee thereof from his said co-defendant. The facts of the ease, which are to be most liberally viewed in favor of the plaintiff’s contention by virtue of the action of the court in granting the defendants’ motion for a di

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rected verdict, are as follows: On February 28, 1922, about midday, the plaintiff was walking upon and along the concrete sidewalk in front of the defendants’ premises and was in the act of crossing a wooden driveway which had been constructed upon and within the space in said sidewalls: which otherwise would have been occupied by a concrete pavement and which driveway led from the street into the defendants’ said premises. While so proceeding, the plaintiff’s shoe caught in some obstruction above the surface of said wooden driveway with the effect that she fell violently forward, as a result of which she sustained certain injuries which form the basis of the present action. One John P. Cuneo, a carpenter, living about two hundred feet away from the scene of the accident, and at the moment thereof standing or sitting at a point opposite the place where it occurred, saw the plaintiff lying upon the driveway in question immediately after she had fallen and went at once to her relief. When he stooped to pick plaintiff up he noticed two nails or spikes protruding about from a half to three quarters of an inch above the surface of the driveway, and he also noticed that the boards from which these spikes protruded were loose. The witness took his hammer and drove the spikes back into place but noticed that they went in easily. The inference is irresistible that it was upon one or other of these protruding spikes that the plaintiff tripped and fell. The driveway in question had been constructed by the defendant Mary J. Claasen, the sole owner of the adjacent premises, in the year 1912 when a building had been erected thereon and a cement sidewalk laid along Mission Street in front of the same, except for a distance of approximately nine feet opposite an entrance at the southerly end of the premises. Upon this nine-foot space the said owner of the premises had caused to be constructed this wooden driveway under a special permit therefor from the board of public works of San Francisco. The driveway was constructed of three by twelve inch Oregon pine planks, laid on top of three by nine inch redwood stringers set sixteen inches apart, which stringers were laid upon the surface of the ground and which driveway when constructed was flush with the level of the cement sidewalk. The premises had been used for several years thereafter as a brewery and the driveway had been constructed and was used during