Opinion
As Modified on Denial of Rehearing Dec. 27, 1966.
For Opinion on Hearing, see 60 Cal.Rptr. 493, 430 P.2d 51. Daley, Patridge & Garrett and R.B. Daley, Stockton, for plaintiff and appellant.
Mayall, Hurley, Knutsen & Smith and Edwin Mayall, Stockton, for defendant and respondent.
OPINION
STONE, Justice.
This is an appeal from a judgment of nonsuit granted in favor of defendant County of San Joaquin.
Plaintiff, a pedestrian, was struck by an automobile driven by one Garrett, and sustained severe personal injuries resulting in paralysis from severance of the spinal cord. He brought suit against Garrett, the driver, and also against defendant, County of San Joaquin, alleging negligent creation and maintenance of a dangerous condition of a street. The county answered, denying the allegations of the complaint and asserting the affirmative defenses of contributory negligence and governmental immunity.
During the course of a jury trial, plaintiff was nonsuited as to the county; the trial proceeded against Garrett, and resulted in a hung jury. Plaintiff appeals from the judgment of nonsuit.
The accident occurred December 18, 1963, on a cloudy, dark evening about 6 p.m. on Alpine Avenue, a paved east-west, four-lane street in the County of San Joaquin. Delaware Street intersects Alpine at right angles, and Franklin Street intersects it substantially at right angles, slightly offset. The distance between Delaware and Franklin is approximately two city blocks. A The difficulty in this case arises from the fact that although the pavement warning marks remained, there was no pedestrian cross-over in the middle of the block which was actually the length of two city blocks, while there was the paved railroad right of way which pedestrians used.
On December 18, 1963, plaintiff, accompanied by his 9-year-old grandson, parked his automobile on Franklin Street south of Alpine, walked west on the south side of Alpine to the railroad tracks and started across to the north side of Alpine between the railroad limit-lines. He had crossed the middle double line and was in one of the westbound lanes when he noticed his grandson was not with him. He stopped in the traffic lane, turned around to look for his grandson when the Garrett automobile traveling westwardly on Alpine, struck him.
Plaintiff, who lived about four blocks from the point of the accident, was familiar with the area both as a pedestrian and as a motorist. He testified that he though he was in an authorized crosswalk; that on many occasions he had seen persons crossing at the tracks. However, he did not recall the pavement marks east of Franklin Street, warning of a pedestrian crossing ahead.
The driver, Garrett, testified that he knew the railroad right of way was not an authorized crossing, and neither plaintiff nor defendant contends the driver was confused.
Two major issues are raised: first, whether the county enjoys immunity under the provisions of the Government Code and, conversely, whether there is a statute upon which the county's liability can be predicated. The second question, negligence, divides itself into two parts, proximate cause under the county' denial of negligence, and due care of the plaintiff under the county's affirmative defense of contributory negligence.
The county contends this court should do as the trial court did and find, pursuant to Government Code section 830.2, that the condition of the roadway was not dangerous as a matter of law. Section 830.2 provides:
"A condition in not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used."
At first impression it would seem that use of a paved, smooth railroad right of way slightly higher than the surrounding roadway would be a most substantial place to walk and within the terminology "minor, trivial or insignificant nature in view of the surrounding circumstances." But an analysis of the section discloses that, at least insofar as this case is concerned, the critical word is "risk" rather than "condition." If a pedestrian is misled to think he The question of statutory liability is not disposed of by our conclusion that section 830.2 does not here provide the county with immunity. The county asserts there can be no liability under Government Code section 830.6, which provides:
"Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor."
However, plaintiff does not contend the plan or design of construction of either the street or the area constituted negligence; rather, he argues that by leaving pedestrian crossing signs on the street after the pedestrian crossing lines were removed, the county misled the public to think the paved, raised railroad right of way was a crosswalk. In our view, section 830.6 contemplates the nature of the design or plan of "layout" of proposed improvements or structures, and not the negligent manner of implementing the design or plan. For example, in this case the determination by the county to eliminate the crosswalk was a plan within the ambit of section 830.6. But the alleged negligence in not removing the pedestrian warning marks constituted an independent act quite aside from the plan or design to eliminate the crosswalk.
Plaintiff contends the county was negligent under Government Code section 830.8, which requires that warning be given
'if a signal, sign, marking or device (other than one described in Section 830.4) was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.'
Typical of cases cited are Arellano v. City of Burbank, 13 Cal.2d 248, 89 P.2d 113, in which there was no warning of a bottle-neck condition in a street, and Campbell v. City of Palm Springs, 218 Cal.App.2d 12, 32 Cal.Rptr. 164, where there was no warning of a blind intersection. These cases are not squarely in point because, here, where the county painted the pedestrian crossing marks on the street they were necessary as a warning to vehicular traffic of a pedestrian crossing ahead. On the other hand, the cases cited by plaintiff are not entirely irrelevant. When the county obliterated the crossing lines but let the "PED XING" warning, a pedestrian misled to believe the railroad crossing to be the crosswalk would be in the same perilous position as the driver of a vehicle in the cited cases approaching a dangerous place without warning. Certainly when the facts are viewed in the light of both sections 830.8 and 835, an issue of government liability to be resolved by the jury presents itself.
Section 835 provides, in part:
"Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiffs establishes that the property "(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; * * * "
However, the negligence must be a proximate cause of plaintiff's injury, an issue as vexing as the question of statutory liability. Plaintiff contends it can be reasonably inferred that pedestrians were misled to believe the railroad right of way was a pedestrian crosswalk by the "PED XING" marks left after the crosswalk lines were obliterated. The railroad right of way was the only crossing of any kind in the two blocks of street between the intersections. Retail establishments line both north and south sides of Alpine Avenue between Delaware and Franklin. One witness whose place of business is located in full view of the railroad right of way crossing, testified that he had observed numerous people using the right of way to cross the street in the middle of the two-block area. He himself though it was a crosswalk until he learned otherwise after the accident.
Plaintiff testified that he had seen people using the railroad right of way as a crosswalk and because of this he thought it was a crosswalk. Hence there is some evidence from which a jury might draw the inference that the members of the public whom plaintiff saw using the right of way did so because of the pedestrian crossing marks on the street, and that plaintiff, in turn, was misled to think it a crosswalk.
The question whether plaintiff exercised due care by crossing where he did in inextricably woven into the factual question of proximate cause. Whether plaintiff exercised due care in using the crossing as he saw other members of the public doing, rests upon the same nexus of relation as the question of proximate cause, that is, a determination that the jury could reasonably infer that the public was misled by the "PED XING" marks.
Although we have used the term "public use" we deem it coextensive with custom, and we learn from Hartford Accident & Indem. Co. v. Bank of America, 220 Cal.App.2d 545, at page 561, 34 Cal.Rptr. 23, at page 32, that 'Custom is competent evidence of the standard of due care in an area where it prevails.' (Bouse v. Madonna Constr. Co., 201 Cal.App.2d 26, 19 Cal.Rptr. 823; Witkin, Cal. Evidence (2d ed. 1966) Custom or Practice of Others on Negligence Issue, § 358, p. 317.)
We conclude that in determining proximate cause and whether plaintiff exercised due care, the jury was entitled to weigh the questions whether the 'PED XING' marks misled the public to believe the railroad right of way was a crosswalk and whether plaintiff exercised due care in relying on the use of the crosswalk by the public, in substance, that he relied on custom in the area.
We have said there is 'some evidence' from which 'the jury might draw the inference' of causation and due care. By this language we do not purport to intimate how a jury might ultimately view the evidence. We have simply followed the settled rule that in reviewing a nonsuit judgment every legitimate inference which may be drawn from the evidence must be viewed in favor of the plaintiff. (Kopfinger v. Grand Central Public Market, 60 Cal.2d 852, 855, 37 Cal.Rptr. 65, 389 P.2d 529; Meyer v. Blackman, 59 Cal.2d 668, 671, 31 Cal.Rptr. 36, 381 P.2d 916; Estate of Lances, 216 Cal. 397, 400, 14 P.2d 768.)
The judgment is reversed.
CONLEY, P.J., and GARGANO, J., concur.