Brooks v. City of Monterey

STURTEVANT, J. This is the second appeal in the above-entitled action. The facts are fully set forth in the opinion determining the first appeal. (Brooks v. City of Monterey, 106 Cal. App. 649 [290 Pac. 540].) When the case went back for a new trial the hearing was had on the same pleadings before the trial court sitting without a jury. The trial court made findings in favor of the defendant and from the judgment entered thereon the plaintiff has appealed and has brought up the judgment-roll. In her pleading, among other things, the plaintiff alleged:

“4. That prior to the great oil fire which occurred in the City of Monterey on the 14th, 15th and 16th of September, 1924, said Reeside street at said abrupt termination was protected against said precipice by a barrier across said street; that said fire consumed said barrier, and said barrier was not replaced until some time after the 11th day of October, 1925.

“5. That during all times from the 16th day of September, 1924, until the 11th day of October, 1925, and for several days thereafter said terminal of said Reeside street was unlighted, unguarded, and without barriers, signs, notices, watchman, or any protection against said precipice, and by reason of being unlighted, unguarded, and without barriers, signs, notices or any protection against said precipice, was in a dangerous and defective condition, as herein alleged. That during all of said times R. M. Dorton was city manager of said City of Monterey, and Manuel S. Perry was the street superintendent of said City of Monterey and that during all of said time said R. M. Dorton and said Manuel S. Perry, and the council of the said City of Monterey had authority and the power to remedy such condition and during all of said time said R. M. Dorton and said Manuel S. Perry and said council had knowledge and notice of said dangerous and defective condition of said [638]Beeside street and during all of said time said B. M. Dorton and said Manuel S. Perry and said council failed and neglected for a reasonable time and at all times after acquiring such knowledge and receiving such notice to remedy such condition, and failed and neglected for a reasonable time and at all times after acquiring such knowledge and receiving such notice to take such steps as might be reasonably necessary to protect the public against said dangerous and defective condition and each and all of said parties failed to remedy or to take steps to remedy such condition.”

No allegation of defective plan or plans was pleaded. In its answer the defendant pleaded the .contributory negligence of the plaintiff.