Aitkenhead v. City & County of San Francisco

STONE, J. pro tem.* Appellant commenced this action seeking damages for injuries suffered by her when she stumbled and fell at the juncture of the sidewalk and curb at 28th Avenue and Quintara Street in San Francisco. Appellant charged respondent with liability under Government Code, section 53050 et seq., the statutory exception to the common law making a municipality liable for injuries resulting from a dangerous or defective condition of the public streets. Liability is contingent upon the injured party proving that the defect created a dangerous condition and that the city had notice or knowledge of the condition and failed to remedy it within a reasonable time.

Appellant was a housewife, 72 years of age at the time the accident occurred. Her husband’s car was parked on 28th Avenue near the corner of Quintara. Appellant and her husband had been visiting in the home of appellant’s niece. She had visited the home three or four times before the accident, the last visit being two weeks before the accident occurred. Appellant and her husband left the house between 8:30 and 8 :45 p. m., February 6,1954, to enter the automobile parked at the side of the curbing. As appellant placed her right foot near the place where the sidewalk and the curbing meet, her right toe went into a depression and as she stepped forward her heel caught in either the depression between the sidewalk and the curb or a gap between two sections of curbing which was immediately adjacent thereto. At the spot where the appellant caught her toe, the angular return of the corner sidewalk meets the 28th Avenue sidewalk and the angular return of the corner curbing meets the 28th Avenue curbing. There are four different levels, one between the contiguous sections of sidewalk, one between the contiguous sections of curbing, one between the 28th Avenue sidewalk elevation and curb elevation and a difference in elevations between the angular curb and the 28th Avenue curb.

[51]Respondent admitted ownership of the street, denied negligence and alleged contributory negligence. The jury brought in a verdict in favor of the plaintiff and defendant city moved for judgment notwithstanding the verdict which the court granted. From the judgment and order this appeal is taken.

No question is raised on this appeal as to notice. The minute order granting the order for judgment notwithstanding the verdict recites “The evidence shows conclusively that the defendant had notice of the defect.” The only issue before this court on appeal is whether it can be said the defect in the sidewalk and curbing was minor or trivial as a matter of law. If the condition was minor, the city is not liable under the rule expressed by the Supreme Court in the case of Barrett v. City of Claremont, 41 Cal.2d 70, where the court said at page 73 [256 P.2d 977] :