Thor v. City & County of San Francisco

JAMES, J., pro tem. Plaintiff sued herein for the death of a minor child of the age of six years, which she alleged resulted through the negligence of the defendant acting in [66]its proprietary and private capacity and also in its governmental capacity. The complaint sets up three separate causes of action; and the particular cause of complaint is the maintenance of an exposed water-pipe in a public highway, upon which the minor fell and received injuries resulting in his death. The three causes of action included: first, the charge that the defendant, in his private capacity, negligently maintained this pipe in a public highway; and, in the second cause of action, that the defendant, in its private capacity, maintained the pipe unlawfully in the highway and which constituted a public nuisance; and, third, that the defendant, in its governmental capacity, maintained Shakespeare Street in a dangerous and defective condition, with notice thereof, and failed to remedy the same. On the trial, the jury returned a verdict in favor of the defendant.

Five reasons are assigned for a reversal in this ease which we will deal with in the order they are presented.

1. It is contended that the court below erred in not instructing a verdict in favor of the plaintiff. This contention requires little discussing. Obviously, it was a matter to be submitted to the jury and the determination of the jury will not be disturbed where there is any evidence to support the verdict. In the present case there is ample.

2. It is next contended that the court below erred in admitting certain evidence by way of impeachment. On the trial, there seemed to be some question as to how the boy came to fall. No witness was produced who saw the start of the accident. The plaintiff and her husband testified to seeing the boy in the act of striking against the pipe. On cross-examination, the mother was asked if her son had not told her after the accident that one Jackie Sheehan had pushed him, which she denied in a somewhat uncertain manner. Thereafter, the defendant introduced the witness Mary Sept, who testified, under objection, to having heard the boy state that Jackie Sheehan had shoved him, or that “there was something said about it, yes. But I don’t know just the date at all . . . there was something said about Jackie Sheehan pushing him, but I did not see it, I cannot swear.” The questions asked of the plaintiff were without objection. The testimony of Mrs. Sept was clearly inadmissible, but in this court’s view the uncertain character of the statements of the latter witness is such that