Barry v. Terkildsen

McFarland, J. — Plaintiff, a girl about nineteen years old, started somewhat in a hurry from her father’s house, about nine o’clock in the morning of October 11, 1880, to go to school. Appellant owned the adjoining premises, and in the sidewalk in front of said premises there was a hole covered by a wooden trap-door, which appellant used for his private convenience. This hole was only a few feet from the entrance to the residence of plaintiff’s father. On the morning above referred to this hole was opened, and entirely unguarded and unprotected. As plaintiff went out of the house her attention was attracted for a moment by some children playing on the street, and not noticing the hole, after taking a couple of steps she fell headlong into it. The hole was quite deep, and plaintiff was very seriously injured by the fall. She had been accustomed to travel over this sidewalk daily on her way to and from school, and never knew before that the hole was there. The premises are on Post Street,—a populous street of the city of San Francisco. The evidence did not show who had removed the trap-door from the top of the hole. The jury found a verdict in favor of plaintiff for three thousand dollars, and defendant appeals from the judgment, and from an order denying a new trial.

Appellant makes many of the points which are usually raised in actions for damages of the class to which the case at bar belongs.

[256]In our opinion, there is nothing in the point that respondent was guilty of contributory negligence. A sidewalk of a street in a city not near a crossing may be taken by one passing over it to be a safe and not a dangerous place. In this case the respondent had a right to presume that the sidewalk was in the same condition in which she had always found it; and the fact that her attention was momentarily attracted in another direction,— a thing of the most common occurrence to travelers along a street,—falls far short of that contributory negligence which in law defeats an action for damages.

Most of the other points made by appellant in various forms, when grouped together, present this proposition or theory: that as respondent failed to show that appellant, or any one of his employees or servants, removed the trap-door from the hole, and did not negative the theory that a stranger might have removed it, therefore there is a want of proof of that negligence which is the gist of an action for personal damages.

To this proposition there is a multitude of authorities, more or less applicable; and they are widely divergent. We think, however, that through the numerous cases upon the subject may be seen a distinction which is determinative of the case at bar. When a person pursues a business, or does an act, perfectly lawful in itself, and not in its nature so hazardous, or so conducive to injury, as to be of the character of a nuisance, then he can beheld liable for injuries to others arising therefrom only when he has been guilty of negligence in his manner of carrying on the business or doing the act.. But when the act is unlawful, or is in its character so hazardous: as to be in the nature of a nuisance on account of the occasion for accident and injury which it continuously presents to innocent persons, then the party is liable, although the agency of a stranger may have contributed to some extent to the final catastrophe. At least, in such a case, the injured party ought not.to.be compelled to.