Kirk v. Santa Barbara Ice Co.

MELVIN, J.

This is an appeal by the Santa Barbara Ice Company (a corporation) from a judgment against it for damages in the sum of five hundred dollars and from an order denying its motion for a new trial.

The action was for personal injuries caused by an obstruction placed on a sidewalk in the city of Santa Barbara by Charles C. Pike, one of the defendants herein. He had restored the cement which had been torn up for the purpose of digging a trench in which pipes were laid connecting a certain shop, owned by one Abraham, with the refrigerating main of the ice company located beneath the street. George E. Voorhees, Jr., an officer of the ice company, in whose name its franchise to lay .pipes in the streets of the city of Santa Barbara had been obtained, was also a defendant, but a motion for nonsuit in his behalf was granted by the court, as it appeared that the corporation was the owner of the franchise, and that Mr. Voorhees had acted for it in obtaining the authority to lay the pipe for the refrigerating systfem.

It appears from the evidence that the Santa Barbara Ice Company caused the digging of the trench across the sidewalk to Abraham’s place of business and that the earth was replaced, after the installation of the pipe, by the company’s workmen under direction of a foreman employed by the corporation. Pike, who was a cement worker, called upon Abraham and solicited the contract for repairing the sidewalk. He was referred to Grant, the acting manager of the ice company, with whom he communicated by telephone. His account of the conversation over the wire differs from that of Grant, but the jury evidently acted principally upon Pike’s testimony. According to Pike, Grant expressed surprise that application for the contract to do the work should be made to him, as he and Abraham had talked the matter over, and he

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had left it to Abraham. He said that there were other repairs to the sidewalk needed, in addition to those made necessary by the digging of the trench; that he had told Abraham to have the sidewalk repaired; and that the ice company would be responsible for that part of the work required to cover the break in the sidewalk produced by the digging of the trench. After reporting this conversation to Abraham, Pike did the work of restoring the sidewalk and placed boards and earth over that part of it which had been rendered necessary by the excavation made for the ice company. This obstruction was not protected by barriers nor lights. Over it the plaintiff fell and sustained the injuries for which the jury awarded her damages. Witness Grant remembered the fact that he had conversed with Pike and had referred him to Abraham. He also testified that Abraham had agreed to fix the sidewalk, but admitted that if Abraham required it he (Pike) was “to have the sidewalk fixed to cover up the trench.”