Opinion
For Opinion on Hearing, see 34 Cal.Rptr. 869, 386 P.2d 493.
Abraham Marcus, Beverly Hills, for appellant, Debra Ann Teall.
Betts & Loomis and Bernard A. Leckie, Los Angeles, for respondent, City of Cudahy.
WOOD, Presiding Justice.
A truck owned by defendant Heller and driven by defendant Hannah struck plaintiff Debra Ann, Teall, a pedestrian 7 years of age, while she was in a marked crosswalk in the City of Cudahy. This is an action for damages resulting from the accident.
In the first cause of action of the second amended complaint, Debra (the minor) and her father sought damages against the individual defendants (the owner and the driver of the truck) upon the basis of alleged negligence in operating the truck.
In the second cause of action, Debra (only) sought damages against the defendant city (only) upon the basis of alleged statutory liability in maintaining a traffic signal in an allegedly obscured position which constituted a dangerous condition of public property.
A general demurrer of the city to said second cause of action was sustained with leave to amend, but plaintiff Debra declined to amend, and a judgment of dismissal as to the city was entered. Plaintiff Debra appeals from the judgment.
The city's demurrer recited that the second amended complaint fails to state facts sufficient to constitute a cause of action against the city 'in that the facts alleged do not constitute a dangerous or defective condition as is contemplated under the Public Liability Act.'
The second cause of action against defendant city alleged, in substance, as follows: Defendant City of Cudahy is a municipal corporation. Atlantic Boulevard extends in a generally northerly and southerly direction, and Cecilia Street extends in a generally easterly and westerly direction, in the City of Cudahy, and they intersect at right angles. The west entrance to Cecilia Street from Atlantic Boulevard is approximately 100 yards north of the east entrance to Cecilia Street. There is a marked crosswalk extending from the east side of Atlantic to the northwest corner of Atlantic and Cecilia. The City of Cudahy maintained an electrically-controlled traffic signal on a pole at the southwest corner of Atlantic and Cecilia for the purpose of controlling the pedestrian traffic crossing in the crosswalk from the east side of Atlantic to the northwest corner of Atlantic and Cecilia and said signal was the only signal maintained for said purpose. The position of the pole at the southwest corner was such as to obscure the signal lights thereon from pedestrians on the east side of Atlantic. On June 1, 1961, about 2:30 p. m., plaintiff Debra Ann Teall, 7 years of age, sought to cross in the crosswalk from the east side of Atlantic to the northwest corner of Atlantic and Cecilia. By reason of the position of said signal maintained by the city, the lights of the signal were obscured from the view of plaintiff Debra. Plaintiff Debra observed that the lights (light) on the traffic signal at the east side of the street were (was) showing red to the north. The lights (light) on the traffic signal at the southwest corner of Atlantic and Cecilia were (was) showing red facing the east to allow It was also alleged in the second cause of action: That on February 8, 1962, the superior court granted her petition, under section 716 of the Government Code, for leave to present a claim against the city after the statutory time limit for presenting such a claim had expired. That on February 13, 1962, she presented a claim (described therein) to the city clerk. More than thirty days had elapsed since presentation of the claim, and the city had not satisfied any part of the claim.
The parties have agreed that the diagram of the scene of the accident, attached to appellant's brief, may be referred to on appeal as an aid to understanding the allegations of the second cause of action. The diagram shows as follows: Atlantic extends north and south and is about 75 feet wide. Cecilia, which extends northwesterly and southeasterly, intersects the west and east sides of Atlantic at angles of approximately 45 degrees. The place where Cecilia intersects the west side of Atlantic is about 175 feet north of the place where it intersects the east side. In other words, there is a 'jog' of approximately 175 feet in Cecilia Street where it 'crosses' Atlantic. There is a marked crosswalk, extending across Atlantic, immediately north of the north intersection of Cecilia and Atlantic. There is no traffic signal at the east or west end of the crosswalk. There is a signal on the east side of Atlantic about 60 feet south of the crosswalk, and there is another signal directly opposite that signal (on the other side of Atlantic), that is, another signal is on the west side of Atlantic at the southwest corner of the north intersection. That signal on the west side of Atlantic is also about 60 feet south of the crosswalk.
Considering the allegations of the second cause of action in connection with the diagram, it appears that the allegations are to the effect that: Debra, who was intending to cross Atlantic, was on the east side of Atlantic at the east end of the crosswalk, and there was no signal at either end of the crosswalk, but there was a signal 60 feet south of her on the same side of Atlantic (east side) and she could see a red light (showing north) on that signal but she could not see a light on the other signal which was on the southwest corner and diagonally across the intersection from her (a distance of approximately 125 feet). At that time the light on the southwest-corner signal was showing red toward the east (toward her) but she could not see it because it was obscured. When she saw the red light of the signal which was directly south of her (red light showing north), she The asserted liability of the city is based upon section 53051 of the Government Code, which provides: 'A local agency is liable for injuries to persons and property resulting from the dangerous or defective condition of public property if the legislative body, board, or person authorized to remedy the condition: (a) Had knowledge or notice of the defective or dangerous condition. (b) For a reasonable time after acquiring knowledge or receiving notice, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition.'
Appellant contends that the city maintained a dangerous condition of its property by reason of the position of the southwest-corner signal, and by reason of the general plan or inter-relationship of the two signals and the crosswalk, whereby the southwest-corner signal was obscured from the view of westbound pedestrians who were at the east end of the crosswalk. In the second cause of action it was alleged that the city maintained the southwest-corner signal for the purpose of controlling pedestrian traffic crossing in the crosswalk from the east side of Atlantic to the northwest corner of the intersection, and said signal was the only signal maintained for that purpose. It was also alleged therein that the position of the signal pole at the southwest corner was such as to obscure the signal lights from pedestrians on the east side of Atlantic. It was also alleged that by reason of the position of the southwest signal pole, the lights of the signal were obscured from the view of plaintiff Debra; and that the maintenance of that signal was a condition which was dangerous for such pedestrians. There is no allegation that the southwest signal was obscured, from the view of pedestrians at the east end of the crosswalk, by reason of anything other than its position. That position is not described or alleged in any manner other than it is on the southwest corner of the intersection. There is no allegation as to the size or dimensions of the intersection, or as to the distance (diagonally across the intersection) from the east end of the crosswalk to the southwest signal. There is no direct allegation that there is a signal on the east side of Atlantic--the allegation regarding such a signal is that plaintiff observed the lights of the traffic signal on the easterly side of 'the street,' and she relied on the signal on the easterly side of Atlantic Boulevard. There is no allegation as to the distance from the crosswalk to the signal on the east side of Atlantic; nor is there any allegation as to the location of the east-side signal with respect to the southwest signal. (Some of these omitted descriptive matters are indicated, however, by the diagram submitted to this court--which diagram was not before the trial court.) It thus appears that the allegations regarding the city's liability are, in essence, that the position of the southwest-corner signal, as related to the other signal and the crosswalk, constituted a dangerous condition of public property. The act of the city in determining the position or place where the southwest-corner signal should be installed and maintained was of course a governmental or legislative matter. The question as to where the signal should be placed was for the determination of the legislative body of the city. (See Mercado v. City of Pasadena, 176 Cal.App.2d 28, 33, 1 Cal.Rptr. 134; Perry v. City of Santa Monica, 130 Cal.App.2d 370, 374, 279 P.2d 92.) The Mercado case, just cited, was an action for damages for personal injuries resulting from a collision of an automobile and a motorcycle in an intersection which was a part of a jog in a street. It was contended therein that the city was liable because a boulevard stop sign was so far back from the intersection that it did not protect plaintiff who was riding a motorcycle. It was held therein that there was no liability on the part of the city by reason of the location of the stop sign, and it was said therein (176 Cal.App.2d p. 33, 1 Cal.Rptr. p. 138): 'The question as to where the stop The case of Holder v. City of Santa Ana, 205 Cal.App.2d 194, 197-198, 22 Cal.Rptr. 707, cited by appellant is distinguishable from the present case. In that case there was a question of fact whether an unfilled sandbox under a tree constituted a dangerous condition with respect to children.
The judgment is affirmed.
FOURT and LILLIE, JJ., concur.