Parsell v. San Diego Consolidated Gas & Electric Co.

BARNARD, P. J. This is an action for personal injuries. A jury having brought in a verdict in favor of the plaintiff, the defendant moved for a judgment notwithstanding the verdict, the motion being in the alternative form permitted by section 629, Code of Civil Procedure, and the right to ask for a new trial in the event of the denial of the motion being reserved. The motion was granted and the plaintiffs have appealed from the judgment then entered.

The accident happened in a paved alley in the City of San Diego, the northern end of which runs into University Avenue. In installing certain gas service for a barber shop which stood at the southwest corner of the intersection of this alley [384]with University Avenue, the respondent, in the spring of 1938, dug a trench in the concrete pavement of the alley some 16 or 18 feet south of its intersection with University Avenue. The trench was later filled in and the pavement repaired, but there is evidence that after that was done several piles of “stones, broken pieces of concrete, rocks and dirt” were left along the easterly edge of the alley pavement and near a retaining wall along the lot on which the building stood which housed the barber shop. These piles of dirt, stones and broken concrete remained there for several weeks after the excavation was filled, and there is evidence that from time to time passing vehicles knocked small rocks and pieces of concrete out onto the pavement as far as a manhole which stood in the center of the pavement and about 18 feet south of the property line.

On May 24, 1938, at about six o’clock in the evening, Ellen Parsell, one of the appellants, while on her way from her home to a store, entered this alley at the southern end of that block and proceeded through the alley toward University Avenue. As she reached the vicinity of the manhole above mentioned she walked around it and had taken two or three steps when she suddenly stepped on a small piece of stone or broken concrete and fell to the pavement, receiving the injuries complained of. She testified that prior to her injury she had passed through this alley at least once a day for many years, that for “quite some time” she had seen these piles of debris near this retaining wall, and that on prior occasions there had never been any stones or broken concrete in her pathway as she walked along the alley.

The first question presented is whether the evidence is sufficient to show any negligence on the part of the respondent which was a proximate cause of this accident. No contention is here made that the evidence does not sufficiently disclose that a quantity of stones and broken concrete was left on this pavement by the respondent after it completed the filling in of its excavation. The respondent does contend, however, that the appellants failed to sustain the burden of proving that the injury in question was proximately caused by the acts of the respondent rather than by the acts of other parties. In this connection, in granting the motion for a judgment notwithstanding the verdict, the trial judge said that he felt “that the uncontradicted evidence showed that