Howard v. Bartolotti

DRAPER, J. pro tem.* Defendant appeals from judgment for plaintiff following jury verdict in this personal injury action. Respondent was a bakery wagon driver. Appellant operated a grocery store, to which respondent delivered bread each week day at about the same time. Crates and sacks of produce delivered to appellant’s store habitually were left upon the sidewalk, and later taken into the store by appellant. On the day of the accident here involved, a shipment of produce was left on the sidewalk outside appellant’s store some time before 9 :30 a. m. When appellant was not busy waiting on customers, he took crates and sacks into the store. By 11:15 a. m., a large lettuce crate was left on the sidewalk. At that time, respondent drove up to make his delivery of bread. Carrying a tray of bread, he stepped backward from his truck, took one step, and fell over the lettuce crate, sustaining severe injuries.

Appellant argues that the evidence is insufficient to establish his negligence. But there is evidence that appellant knew of and consented to deliveries upon the sidewalk, and knew also of respondent’s customary arrival time and manner of delivery of his products. The obstruction of a highway (Stockton Automobile Co. v. Confer, 154 Cal. 402 [97 P. 881]) or a sidewalk (Mosley v. Ardens Farms Co., 26 Cal.2d 213, 216 [157 P.2d 372, 158 A.L.R. 872]), even in the absence of a statutory prohibition, will permit a finding of negligence when injuries proximately result from the obstruction. The likelihood of injury to plaintiff was clearly foreseeable. The evidence fully justifies the jury’s finding that appellant was negligent.

Appellant contends, also, that respondent was, as a matter of law, guilty of contributory negligence. There is no merit in this argument. Respondent testified that he looked at the sidewalk when he was parking his truck, and again before he stepped from the vehicle. Whether he exercised due care for his own safety under all the circumstances was a question of fact for the jury, and not a question of law. [154](Anthony v. Hobbie, 25 Cal.2d 814 [155 P.2d 826]; M & M Livestock Transport v. California Auto Transport Co., 43 Cal. 2d 847 [279 P.2d 13].)

An ordinance provided:

“No person shall place or cause to be placed anywhere upon any . . . sidewalk and no person owning, occupying or having the control of any premises shall suffer to remain in front thereof upon the sidewalk . . . any boxes, bales, barrels, wood, lumber, goods, wares and merchandise ... or any other thing obstructing the free use of or passage of said . . . sidewalk. Provided, however, that goods, wares and merchandise in transit may be allowed on the outer three feet of the sidewalk for a period not exceeding one half hour. ’ ’