Opinion
Hearing Granted Feb. 16, 1942.
Appeal from Superior Court, Los Angeles County; George A. Dockweiler, Judge.
Action by John A. Westover against the City of Los Angeles for injuries sustained while riding in the back seat of an automobile as result of an alleged dangerous condition in a street. From a judgment for the plaintiff, defendant appeals.
Reversed.
COUNSEL
Ray L. Chesebro, City Atty., Frederick von Schrader, Asst. City Atty., and Leonard Husar, Victor P. Spero, and Louis A. Babior, Deputy City Attys., all of Los Angeles, for appellant.
Thomas R. Lynch and Irving E. Read, both of Los Angeles, for respondent.
OPINION
McCOMB, Justice.
From a judgment in favor of plaintiff after trial before a jury in an action to recover damages for personal injuries received by plaintiff as a result of being bounced in an automobile which was being driven over a dip in the highway, defendant appeals. The action was brought under the 1923 Public Liability Act, Stats. 1923, p. 675, Act 5619, vol. 2.
Viewing the evidence in the light most favorable to respondent, the essential facts are:
June 7, 1937, plaintiff was a passenger seated in the back seat of an automobile which was being driven south on Gaffey Street in Los Angeles. At the intersection of Twentieth Street the car struck two dips, which threw plaintiff against the top of the car, injuring his head.
Defendant urges, among other errors, that the trial court committed prejudicial error in instructing the jury as follows:
"If you find from a preponderance of the evidence that there was any negligence on the part of the driver of the motor vehicle in which plaintiff was riding which proximately contributed to plaintiff’s accident, and you likewise find that the defendant city of Los Angeles violated the provisions of the 1923 Public Liability Act, heretofore read to you, and thereby created a dangerous or defective condition of the streets in question, and you further find that its violation of said provisions likewise contributed proximately to the happening of the accident, then I instruct you as a matter of law to find in favor of plaintiff, John A. Westover, and against the defendant, City of Los Angeles, on the issue of liability."
This proposition is tenable and is governed by the following rules of law:
(1) Where an instruction directs a verdict in favor of plaintiff, providing the jury finds certain facts to be true, the instruction must embrace all elements necessary to show legal liability of defendant and to warrant the conclusion that plaintiff is entitled to a verdict. (Starr v. Los Angeles Ry. Corp., 187 Cal. 270, 278, 201 P. 599; Douglas v. Southern Pacific Co., 203 Cal. 390, 393, 264 P. 237.)
(2) To establish liability of defendant under the provisions of Act 5619, supra, it is necessary that the jury find that defendant city had knowledge of the dangerous character of the condition which caused the injury. (Nicholson v. City of Los Angeles, 5 Cal.2d 361, 363, 54 P.2d 725; Whiting v. National City, 9 Cal.2d 163, 165, 69 P.2d 990; Beckley v. Vezu, 23 Cal.App.2d 371, 377, 73 P.2d 296.)
Applying the foregoing rules to the instruction under criticism, it appears that the instruction was a formula instruction and that it omitted one of the essential elements prerequisite to plaintiff’s recovering a judgment against defendant, to wit, it did not charge the jury that, as one of the elements necessary for it to find as existing before returning a verdict in favor of plaintiff, it must find that defendant city had knowledge of "the dangerous character of the condition" which was the proximate cause of the injury.
In passing it should be noted that in the instant case before any evidence was taken the trial judge gave the jury instructions relative to the rules of law applicable to the case. Many of these instructions appear to have been given orally without assistance of written memoranda. We have had occasion previously to condemn this practice. (Martin v. Los Angeles Turf Club, Inc., 39 Cal.App.2d 338, 343, 103 P.2d 188.)
For the foregoing reasons the judgment is reversed.
MOORE, P. J., concurred.
W. J. WOOD, Justice, (concurring specially).
I concur in the judgment. In my opinion the instruction set forth in the majority opinion, although subject to criticism, does not call for a reversal. It will be noted that the jurors were instructed that the city would be liable if they "find that the defendant City of Los Angeles violated the provisions of the 1923 Public Liability Act, heretofore read to you. * * *" In a separate instruction the provisions of the Public Liability Act of 1923 were read to the jurors and they were thereby informed that liability of the city must be predicated upon knowledge on its part of the dangerous character of the premises involved in the accident.
In my opinion a number of serious errors in giving other instructions were committed by the trial court which were of such a nature as to call for a new trial. The court gave the jury the following instruction: "If the city has notice of the dangerous and defective condition, and after giving the city reasonable time within which to repair the condition, it fails so to do, that failure is the proximate cause of the accident then in that event the city is liable." The Public Liability Act provides that after knowledge of the dangerous condition of a street the city is liable if it neglected "for a reasonable time after acquiring such knowledge or receiving such notice, to remedy such condition or failed and neglected for a reasonable time after acquiring such knowledge or receiving such notice to take such action as may be reasonably necessary to protect the public against such dangerous or defective condition." Section 2. Under the provisions of the act the city could either remedy the defective condition or take such action as would be reasonably necessary to protect the public. The instruction did not inform the jurors that the city would be freed from liability if it did in fact take reasonable precaution to protect the public. The record discloses that the city took certain steps by the erection of signs to protect the public. Plaintiff claimed, however, that the precautions taken by the city were insufficient. Whether the city took proper steps to protect the public was a question for the determination of the jury, which should have been properly instructed on the point.