Barton v. McDonald

Hayne, C. Action against a contractor for negligence in repairing a street; verdict and judgment for plaintiff for three hundred dollars; defendant appeals from the judgment without any bill of exceptions or statement.

It must be taken as established by the verdict that the allegations of the complaint are true. Therefore the fact must be taken to be that the defendant was a contractor “ to repair and replank East Street, in said city and county of San Francisco, state of California, from the intersection of Market Street with said East Street southerly to and beyond the intersection of Howard Street with said East Street”; that he entered upon the [266]performance of the work, and on the 20th of January, 1887, be “ was engaged in laying plank upon said East Street”; that on said day “and on East Street, he, the said defendant, carelessly and negligently left a space or hole uncovered, and carelessly and negligently left the same so open and uncovered, without any guard or other protection around the same, or notice to warn persons who might be traveling along or upon said East Street of danger, or that they were approaching danger as they came near or in proximity to said opening or hole, so left open, unguarded, and unprotected as aforesaid; nor did he, the said defendant, keep or have any light or lights about or near said opening or hole, "that persons passing along said East Street could see said opening or hole or the danger they were in as they approached the same”; that on said 20tli day of January the plaintiff was traveling along said East Street, between the streets mentioned, “ when, without any notice or warning of approaching danger, and without any fault or negligence on his part, he fell through said opening or hole, so left open and unguarded and unprotected by said defendant as aforesaid,” and was injured.

The complaint is perhaps not a model.of pleading, but we think that it was sufficient, and that the demurrer was properly overruled.

If a contractor leaves an unguarded hole in a public street which he is repairing, it is negligence for which he is responsible to those injured thereby without contributory negligence. It appears from the appellant’s brief that there is an ordinance of the board of supervisors which contains, among other things, the following provisions:—■