Parsons v. City & County of San Francisco

Crocker, J. delivered the opinion of the Court—Norton, J. concurring.

This is an action brought by the plaintiff against the City and County of San Francisco, to recover damages for injuries sustained by him, caused by falling down an embankment on Stockton Street. [463]The defendant sets up that she is not liable, under the provisions of Sec. 64 of the act known as the Consolidation Act (Stat. of 1856,162), which determines the liability in such cases. Said section is as follows:

“If, in consequence of any graded street or public highway being out of repair, and in a condition to endanger persons, horses, or other animals passing therein, any person, while lawfully using said street or public highway, and exercising ordinary care to avoid the danger, suffer damages to his person; or if any horses, animals, or other property, being lawfully ridden, driven, or conveyed through such street or public highway, be injured, lost, or destroyed through any such defect therein, no recourse for the damage thus suffered shall be had against the City and County of San Francisco; but if such defect in the street or public highway have existed for the period of twenty-four hours or more, then the person or persons on whom the law may have imposed the obligation to repair such defect in the street or public highway, and also the officer or officers through whose official negligence such defect remained unrepaired, shall be, jointly and severally, liable to the party injured for the damage sustained.”

The street in question was not a “ graded street ” at the time of the accident, and the appellant therefore contends that it could not be “ out of repair,” within the meaning of this section. The statute reads, “ graded street or public highway;” and it is clear, that if it was not a graded street, it was a public highway, and therefore it was within the statute. The terms “public highway” are most general in their meaning, and include all kinds of thoroughfares in which the public have a right of way or passage. It clearly includes graded and ungraded, finished and unfinished streets. The statute says, “ being out of repair, and in a condition to endanger persons,” etc. These terms are not properly confined to graded, constructed, or finished streets, but include those public highways in a state of nature, or partially-graded condition, when they are in such a state as to endanger persons or animals passing therein.

It is urged, that the defendant did not show that the embankment, or other defect in the street which caused the injury com