Opinion
Page __
__ Cal.App.2d __250 P.2d 675PETERSv.CITY AND COUNTY OF SAN FRANCISCO et al. Civ. 15037.California Court of Appeals, First District, Second DivisionNov. 28, 1952.Hearing Granted Jan. 22, 1953.
Fitz-Gerald Ames, Sr., San Francisco (Guernsey Carson, San Francisco, of counsel), for appellant Carrie C. Peters.
[250 P.2d 676] Dion R. Holm, City Atty., and Lawrence S. Mana, Deputy, San Francisco, for appellant City and County of San Francisco.
Daniel C. Miller, San Francisco, Anna White Garlund, San Francisco, for respondents Duque.
GOODELL, Justice.
In the early afternoon of March 12, 1947, which was a clear day, the plaintiff while walking northerly on the sidewalk in front of an apartment house on the easterly side of Twelfth Avenue in San Francisco, fell and was seriously injured. She sued for damages, joining as defendants the City and County of San Francisco and the owners of the apartment house, on the ground that the sidewalk was dangerous and defective. The jury awarded her $12,500 against the City but brought in a verdict in favor of the owners. The City's motion for judgment notwithstanding the verdict was denied. Both the plaintiff and the City moved for a new trial and on its denial both appealed.
The sidewalk, which is 15 feet wide, was laid before the house was built. When the structure was built or soon after in 1919 the sidewalk was altered so as to carve therein an automobile runway leading into a garage. (There is another runway not involved herein.) For a distance of 8 feet and 5 inches inward from the curb the sidewalk is relatively flat, but the depressed part of the runway then extends on a gradual slope downward (a distance of 6 feet and 7 inches) to the building line, at which point its depth is 11 inches below the normal sidewalk level.
The application for a building permit filed on June 6, 1919, by the then owner of the property contains the following:
'I hereby agree to save, indemnify and keep harmless the City and County of San Francisco against all liabilities, judgments, costs and expenses which may in any wise accrue against said city and county in consequence of the granting of this permit, or from the use or occupancy of any sidewalk, street or sub-sidewalk placed by virtue thereof, and will in all things strictly comply with the conditions of this permit, and the Building Law.'
From the time the house was built to the time of the accident, through changes in ownership, the runway remained just as it was 'created' in 1919 by the then owner. The defendant-owners when they acquired the property in 1940 found it as it was originally built and left it that way.
The plaintiff's appeal.
The plaintiff's principal contention on her appeal from that part of the judgment which is in favor of the defendants Jeanne and Marie Duque is that there was prejudicial error in giving the following instructions:
(a) 'Now, the sidewalk that was involved in the accident under consideration in this case was not the property of the defendants Duque, but was property that had been dedicated to the public as a sidewalk and belonged to the City and County of San Francisco. No affirmative duty rested on said defendants Duque as the owners of property abutting said sidewalk or otherwise to keep the sidewalk in a safe condition, but our law does provide that when the owner of property abutting a sidewalk creates, by some positive action, a condition which is likely to cause harm to persons lawfully using the sidewalk, and a person so using the walk is injured as a proximate result of such condition, the property owner is then liable for that injury, in the absence, of course, of contributory negligence. If the plaintiff in this case has any lawful claim for damages against the defendants Duque, that claim must rest on the principle of law just stated to you, and on facts which, if existent, evoke that principle under the rule stated.'
(b) 'You are instructed that, in this state, there is no obligation on the owner of property abutting upon a public street or sidewalk to keep such public street or sidewalk adjoining his premises in repair, or in a safe condition for public travel, except where [250 P.2d 677] there is a statute or ordinance imposing such a duty upon him, or where such owner created, through use or otherwise, some unsafe condition.'
The statement that no affirmative duty rested on the owners etc. is not (in the circumstances of this case) a correct statement of the law, and the statement with respect to the creation of the hazardous condition by the owner 'by some positive action', is misleading since it implies that only in case the dangerous condition was created by the owners then before the court, could they be held liable. Such is not the law.
That an affirmative duty does rest on the owner in circumstances such as those presented herein is held in the case of Granucci v. Claasen, 204 Cal. 509, 269 P. 437, 438, 59 A.L.R. 435, where the owner constructed a plank driveway across the sidewalk area in front of her property so that trucks could drive in and out. The nails or spikes in the planks became loosened by wear and tear and protruded above the surface. A pedestrian tripped on one of them and was seriously injured. She sued the owner, for whom the trial court directed a verdict. In reversing the court said:
'This driveway having been thus constructed and used not primarily for sidewalk purposes but for the benefit and convenience of the said defendants in connection with their adjacent property and which use was one which was independent of and apart from the ordinary and accustomed use for which sidewalks are designed, the duty was cast by law upon the defendants to exercise reasonable care and diligence in the keeping of said driveway at the point where it was superimposed upon said sidewalk in a proper and safe condition for the passage of pedestrians rightfully using said sidewalk and said driveway superimposed by defendants thereon. (Citations.)'
That holding was re-affirmed in Sexton v. Brooks, 39 Cal.App.2d 153, 157, 245 P.2d 496, 498, (on June 26, 1952, just after these appeals were first argued) where the court said:
'It is the general rule that in the absence of statute a landowner is under no duty to maintain in a safe condition a public street abutting upon his property. Martinovich v. Wooley, 128 Cal. 141, 60 P. 760; Schaefer v. Lenahan, 63, Cal.App.2d 324, 146 P.2d 929; see note 93 A.L.R. 800-803. There is, however, an exception to this rule * * *. It has been held that an abutting owner is liable for the condition of portions of the public sidewalk which he has altered or constructed for the benefit of his property and which serve a use independent of and apart from the ordinary and accustomed use for which sidewalks are designed. Granucci v. Claasen, 204 Cal. 509, 269 P. 437, 59 A.L.R. 435 (plank driveway across sidewalk area); see, generally, notes in 62 A.L.R. 1067-1073; 59 A.L.R. 441-443. The duty to maintain such portions of the street runs with the land, Monsch v. Pelissier, 187 Cal. 790, 793, 204 P. 224, and a property owner cannot avoid liability on the ground that the condition was created by his predecessors in title. Nickelsburg v. City of New York, 263 A.D. 625, 34 N.Y.S.2d 1, 2-3; Kniffley v. Reid, 287 Ky. 212, 152 S.W.2d 615; Herron v. City of Youngstown, 136 Ohio St. 190, 24 N.E.2d 708, 710; Joel v. Electrical Research Products, Inc., 2 Cir., 94 F.2d 588. Any suggestion to the contrary in Daly v. Mathews, 49 Cal.App.2d 545, 548, 122 P.2d 81, is disapproved.'
The only difference between the Granucci case and the present one is in the mode of the alteration of the sidewalk; the cases are parallel.
The respondent owners say that 'The court's instructions * * * were based upon the case of Daly v. Mathews'. They close their brief with the assertion 'that Daly v. Mathews * * * properly states the law applicable to this case' but Sexton v. Brooks holds otherwise.
We must hold, on the authority of Granucci v. Claaen and Sexton v. Brooks and the cases they cite, that the two instructions were prejudicially erroneous.
[250 P.2d 678] Plaintiff also claims that it was error to reject the following instruction which she tendered: 'Where the owners of property abutting on a sidewalk constructed, maintained or used a driveway extending out into the said sidewalk, not as a sidewalk, but primarily as a driveway into the premises of said property owner, and for their private use, convenience and benefit, said abutting property owner is liable for injuries sustained by other persons, for any defective or dangerous condition of the driveway, amounting to negligence proximately causing the accident and injuries sustained, providing the injured party is herself free of contributory negligence proximately contributing to the happening of the accident.' We agree with appellant that there was prejudicial error in refusing this instruction.
The City's Appeal.
The City was brought into this case by the following allegation: 'That the defendants, and each of them, at all of the times herein mentioned and for some time prior thereto, caused to be constructed and maintained adjacent to, and immediately adjoining said building * * * a garage driveway and sidewalk; that all of said premises are, and were at all times herein mentioned, used by the public as sidewalks' and that all the defendants maintained the sidewalk and driveway in a defective and dangerous condition. (Emphasis added.)
The verdict reads: 'We, the jury * * * find a verdict in favor of plaintiff and against defendant City and County * * * in the sum of $12,500; and find a verdict in favor of defendants Marie Duque and Jeanne Duque and against plaintiff'.
We agree with the City that 'The liability of the abutting property owner for a condition of the sidewalk maintained for his sole and exclusive use and benefit is a liability imposed under common law principles of negligence and nuisance, and has long been recognized in California. The liability of a municipality for the dangerous or defective condition of a sidewalk is a statutory liability arising under the Public Liability Act of 1923.'
The City says (and we assume it to be correct) that 'The instant case is the first on appeal since the enactment of the Public Liability Act of 1923 where the question of the respective liability of a city and of an abutting owner arising from an alleged dangerous or defective condition of a sidewalk created or maintained for the benefit of the abutting property is involved in a case where both the municipality and the abutting owner are parties defendant.'
The City contends that 'The liability of the City in this case, because it is in fact a derivative liability arising from the use of the sidewalk and driveway made by the abutting property owner, can only be established if liability of the abutting property owner is established, in which latter event the City would be entitled to complete indemnification from the abutting property owner.' It is not necessary to decide this question. It is sufficient to note that two of the authorities cited approvingly in Sexton v. Brooks (in support of another point, however) indicate that such is the rule, Herron v. City of Youngstown, 136 Ohio St. 190, 24 N.E.2d 708, 710 and Nickelsburg v. City of New York, 263 A.D. 625, 34 N.Y.S.2d 1, 2-3, and that Dillon on Municipal Corporations, Vol. IV, secs. 1725-1728 so indicates. Section 1727 of Dillon, dealing with this type of case, reads:
'Ultimate Liability.--The ultimate liability in such cases is upon the author or continuer of the nuisance; but if the party injured elects to proceed against the municipal corporation for failing in its duty to keep the streets and sidewalks in a safe condition for public travel, and there is no statute dispensing with notice as a condition of liability, he must show notice to the corporation of the obstruction or defect, or at least, neglect of duty in not ascertaining it. If the person injured fail in his action against the municipality, this is no bar to an action by him against the author of the nuisance.'
Section 1728 reads: 'Action over.--If a municipal corporation be held liable for damages sustained in consequence of the [250 P.2d 679] unsafe condition of the sidewalks or streets, it has a remedy over against the person by whose wrongful act or conduct the sidewalk or street was rendered unsafe, unless the corporation was itself a wrongdoer, as between itself and the author of the nuisance; and if the latter had notice of the pendency of the action against the municipality, and could have defended it, he has been held to be concluded as to the existence of the defect or nuisance in the street, and as to the liability of the corporation to the plaintiff in consequence thereof, and as to the amount of damage or injury it occasions. * * *'
The City cites many other authorities supporting these views but, as indicated above, there is nothing in this case requiring a decision of the questions discussed by Dillon.
The only question which need be decided herein is whether the instructions tendered by the defendant owners, admittedly based on Daly v. Mathews, on which the judgment must be reversed on plaintiff's appeal, may be urged by the City as grounds for reversal of the judgment against the City.
With respect to instructions given at the request of non-appealing co-defendants and not by an appellant's adversary, the court in Martinelli v. Poley, 210 Cal. 450, 459, 292 P. 451, 455, had this to say:
'We do not understand, however, that this fact would make any material difference as to the force or effect of the instruction. If it was given by the court, the jury were justified in acting upon it, and the consideration given to it by the jury would be the same whether the instruction was given at the request of one party to the action or of the other. The error in either case, if the instruction were erroneous, would be the same, except that the party who offers the instruction cannot complain of the action of the court in giving it. We think the appellant as he was not in any way responsible for the giving of the instruction, has the right to complain of any erroneous statement of law contained therein which injuriously affected his rights in the action or trial.' (Emphasis added.)
There is no doubt that instructions (a) and (b) injuriously affected the rights of the City. In presenting the plaintiff's appeal her counsel said: 'These instructions amounted in effect to a direction by the judge to bring in a verdict for the defendants Duque.'
In Monsch v. Pellissier, supra, 187 Cal. 790, 793, 204 P. 224, 225, the Supreme Court said: 'As we view the liability of the defendant under the facts as stated in the amended complaint, it is entirely separate from, and independent of, the city, and the latter's obligation to keep the sidewalk in proper repair. It is an original responsibility resting upon defendant to keep the gratings and lights in a condition which will render the sidewalk, of which they form a part, reasonably safe for use by those who may pass over it.'
If the owners' liability 'is entirely separate from, and independent of, the City, and the latter's obligation to keep the sidewalk in proper repair' and an 'original responsibility' then, certainly, instructions (a) and (b) which in effect transferred the owners' burden of responsibility onto the City, were highly prejudicial to the latter.
The City attacks another instruction which was given at the owners' request reading as follows: (c) 'You are instructed that, in this case, the ordinances and statutes which, by their operation, might place a liability upon the defendants Duque for any condition existing upon the streets or sidewalks at the place where this accident is alleged to have occurred, require that a notice to repair be first given to those defendants by the City and County of San Francisco, or its designated agents. You are instructed that there is no evidence in this case that the notice required to place such liability upon the defendants Duque was ever given to them.'
This instruction contained an incorrect statement of the law since the owners' duty does not arise from statute or ordinance nor does it have to be brought into operation by the service of any notice by the City. Moreover, it erroneously injected the City into the owners' case. When the instruction told the jury that no such notice had [250 P.2d 680] been proved, it told them in effect that no such duty had arisen.
We must hold that the giving of instructions (a), (b) and (c) were just as prejudicial to the City as to the plaintiff, and that the judgment must be reversed on the City's appeal for the reasons and on the authorities found under the first heading.
The City has still another ground of appeal. It tendered, but the court rejected, the following instructions:
(d) 'Where an owner of property makes use of the sidewalk for his own purpose, as for instance as a garage entrance, he must exercise reasonable care to keep the sidewalk in a reasonably safe condition, and the city authorities, in the absence if [of] notice to the contrary, are entitled to assume that the property owner is performing his duty in this respect.'
(e) 'Where the owner of property maintains a driveway on the sidewalk in front of his premises, he is liable for injuries proximately caused by his negligence in maintaining such driveway, in the absence of contributory negligence of the plaintiff.'
The refusal of these two instructions accentuates the error in giving instructions (a), (b) and (c), since they are entirely inconsistent with (d) and (e) which at least partially announce the correct rule as restated in Sexton v. Brooks.
There is no reason to discuss any other points.
Since a new trial is inevitable we must assume that instructions will be given therein conforming to the rules stated in Sexton v. Brooks, supra, and in the earlier cases which it cites, without regard to the form of the instructions in this record tendered by the plaintiff and the City and rejected by the court.
The judgment is reversed and the cause remanded for a new trial as to all the defendants.
JONES, J. pro tem., concurs.
NOURSE, Presiding Justice (concurring).
I concur in the order of reversal as to the City and County of San Francisco but for reasons not stated in the main opinion. The City's motion for a directed verdict should have been granted. The complaint did not state a cause of action as to the City. The plaintiff did not prove that the City had notice or knowledge of any defect in the sidewalk or of any dangerous condition resulting from its use. This is a prerequisite of recovery from the City under the public liability statute. Whiting v. City of National City, 9 Cal.2d 163, 69 P.2d 990, so holds. It has been followed consistently.
As to the respondent property owners I would affirm the judgment. Plaintiff's statement of the cause of her injury was that 'her foot unexpectedly slipped into the drop in the sidewalk caused by a driveway having been cut into the sidewalk in order to serve the Duques' garage.' She confines her appeal to errors in the instructions. These are fully discussed in the main opinion. That discussion is academically sound but basically uncontrolling. Errors in instructions cannot support a reversal if the case made demonstrates that they were nonprejudicial. Here the accident occurred on a clear, sunny day when the 'dip' was clearly visible; there was no evidence that the driveway was negligently constructed or maintained; no evidence of any hidden defect either in construction or maintenance; in fact no evidence that the driveway was constructed or maintained in any manner other than many thousands of such driveways used throughout the City. The plaintiff was an elderly woman presumably in possession of all her faculties and one who was fully aware of the common practice of the use of such driveways.
Section 4 1/2 of Art. 6 of the Constitution provides that: 'No judgment shall be set aside * * * on the ground of misdirection of the jury * * * unless, after an examination of the entire cause, including the evidence, the court * * *' shall find a miscarriage of justice. There can be no miscarriage because of erroneous instructions when there is no case made for judicial relief.