[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 201 This appeal is by defendant from a judgment awarding damages to the plaintiff for personal injuries suffered by him in falling upon a wet and slippery sidewalk in front of defendant's premises.
On a former trial of the action the verdict of the jury and judgment was for the defendant. On appeal an order for a new trial granted by the trial court was affirmed. (Mora v.Favilla, 37 Cal.App. 164, [173 P. 770].) On the second trial the verdict find judgment appealed from fixed plaintiff's damages at the sum of two thousand five hundred dollars. This amount was reduced to one thousand eight hundred dollars, with the consent of plaintiff, as a condition made by the trial court in denying defendant's motion for another new trial.
The alleged negligence of defendant consisted in his having wet down the sidewalk with the hose just prior to the time that plaintiff was injured, about 10 o'clock in the forenoon, in violation of a city ordinance which prohibited the wetting down or washing of sidewalks between the hours of 8 in the morning and 6 in the evening.
The walk in question is on Montgomery Street, in the City of San Francisco, and at a steep place in the street presenting a grade of about twenty per cent. In attempting to pass down this strip of sidewalk the plaintiff slipped and fell, breaking his leg. *Page 202
[1] The defendant by his answer alleged contributory negligence on the part of plaintiff. Plaintiff's negligence was sufficiently pleaded. It was averred, "That during all said times plaintiff was intoxicated, reckless, indifferent, and thoughtless as to the consequences of his movements. That any and all injuries, if any, received and sustained by plaintiff as set out in the complaint on file herein, were so received and sustained by him and caused to him solely by reason of his intoxicated condition aforesaid and of his own recklessness, negligence, and lack of ordinary care. That the alleged injuries to plaintiff were contributed to and proximately caused by the said intoxicated condition of plaintiff, and the carelessness and negligence aforesaid, and if it had not been for said intoxicated condition, carelessness, and negligence of plaintiff, no injury or injuries would have been suffered by or inflicted upon plaintiff because of or as a result of the conduct of defendant complained of in said complaint." The alleged contribution of plaintiff to his accident is not limited to proof of a state of intoxication but covers negligence and want of care in any other particular.
Conceding the sufficiency of the evidence to make a primafacie showing that defendant was guilty of negligence in turning water upon the sidewalk at the time of day indicated, and that the plaintiff was not guilty of contributory negligence in attempting to use the walk with full knowledge that it was wet, we agree with the contention of defendant that material issues in the case were taken from the jury by erroneous instructions given for defendant and by refusal to grant certain instructions asked by plaintiff.
[2] Instruction numbered one, complained of on this appeal, is not in itself subject to serious criticism. It instructs the jury that the violation of an ordinance constitutes negligence in itself.
An act which is performed in violation of an ordinance or statute is presumptively an act of negligence, and while the defendant is permitted to rebut such presumption by showing that the act was justifiable or excusable under the circumstances, until so rebutted it is conclusive. (Harris v. Johnson, 174 Cal. 56, 58, [Ann. Cas. 1918E, 560, L. R. A. 1917C, 477, 161. Pac. 1155]; Shearman Redfield on Negligence, *Page 203 p. 13; Cragg v. Los Angeles Trust Co., 154 Cal. 663, 667, [16 Ann. Cas. 1061, 98 P. 1063]; Squier v. Davis Standard BreadCo., 181. Cal. 533, [185 P. 391].) In this instruction as it stands there is no condition stated as to the effect of contributory negligence on the right of recovery, but respondent claims that such omission is cured by instructions numbered 5 and 6, which correctly define contributory negligence, and inform the jury that it must find for the defendant, if the plaintiff was guilty of contributory negligence at the time of the happening of the accident in question, and if such negligence on his part was the proximate cause of the accident.
[3] It is objected that the statement in this instruction as to the contributory negligence being the "proximate cause" of the accident is too broad. In view of the fact, however, that in the instruction immediately preceding the jury was told that a want of ordinary care by plaintiff "concurring or co-operating with the negligent act of the defendant" as the cause of the injury constitutes contributory negligence, this instruction may be held without prejudice.
[4] But in summing up the charge to the jury the court in an oral instruction used the following language: "Some evidence has been introduced here as to the condition of the plaintiff with respect to sobriety at the time of the injury in question. You have heard this testimony and you are to determine from that what in fact was his condition. It is a question of fact for you to determine whether he was at that time intoxicated, or not. If you should find that he was not, and that the injury was sustained without any contributory negligence on his part, then it is your duty to find a verdict in favor of the plaintiff."
Coming after the written instructions presented by the parties to the action, in an oral statement of the law of the case by the court, the instruction was likely taken by the jury as a summing up of the view of the court upon the questions presented. It contains two grounds of objection. First, it suggests that proof of a state of intoxication on the part of plaintiff is an essential condition to finding him guilty of contributory negligence; [5] and, secondly, it instructs a verdict in such case for the plaintiff without reference to proof of the defendant's negligence. In fact, the earlier part of this oral charge practically fixes the negligence of the defendant *Page 204 as a matter of law. The trial judge says: "Now, the plaintiff in this case has established, concededly, a violation of the ordinance. That of itself was negligence on the part of the defendant." There was an attempt under the evidence in behalf of defendant to show that the sidewalk was in such a dirty and dangerous condition by reason of boys of the neighborhood having been sliding down the incline of the walk on greased boards, as to justify washing it off at any time of day irrespective of the inhibition of the ordinance. This condition was disputed on behalf of plaintiff, but it may well be contended that the facts in evidence raised a question for the jury as to whether or not the defendant was guilty of negligence in washing the sidewalk although in violation of the ordinance, or even that the water on the sidewalk was the proximate cause of defendant falling and suffering injury. It is common knowledge that it is difficult to remove grease with water, particularly cold water from a hose, and it may well be that the remains of the grease which defendant had attempted to remove caused plaintiff to fall. And, in any event, it was for the jury to determine, in the light of this claim of necessity for washing the sidewalk, whether the act of using the hose at the forbidden time of day established a want of ordinary care and prudence. It may sometimes happen that prudence, and safety to life and limb, require the doing of an act which otherwise would be a violation of law. (Squier v. Davis Standard BreadCo., 181 Cal. 533, 535, [185 P. 391].) It is difficult to escape the conclusion that there was prejudicial error in the construction of the law given by the instruction. Taken in connection with the refusal of the court to give certain instructions asked by defendant, which would have cured error in the instructions given, we think a new trial should be had.
[6] The following instructions, presented on behalf of defendant, were refused:
"13. If you find from the evidence that plaintiff knew that said sidewalk was wet and he did not use the care that a person of ordinary prudence would have used in passing over said sidewalk under the circumstances, and in consequence fell and suffered his injuries, then I instruct you that plaintiff cannot recover. *Page 205
"15. If you find from the evidence that plaintiff at the time he attempted to pass over said sidewalk in front of defendant's building situate on Montgomery Street, in this city, and designated as Nos. 1130, 1132 Montgomery Street, knew that it was dangerous or unsafe to attempt to pass over said sidewalk or knew or had reason to know and should have known that it was imprudent for him to attempt to pass over said sidewalk, and you further find that there was at hand another safe and convenient way which he could have easily and readily have taken in going the way he desired to go and that nevertheless he attempted to pass over said sidewalk and in consequence fell and came to his injuries, then I instruct you that plaintiff was negligent in attempting to pass over said sidewalk and cannot recover.
"16. Even if defendant was negligent because he violated Ordinance No. 1035 respecting the washing of sidewalks, which was read in evidence, and even if you find that the washing of said sidewalk did cause or occasion plaintiff's fall and his injuries, still if you find that the said sidewalk was at the time plaintiff attempted to walk over it in such condition that it was then apparent and would have been apparent then to any person of ordinary prudence, who was about to walk over said sidewalk or attempted to walk over said sidewalk, that it was dangerous to attempt to cross said sidewalk and you further find that defendant warned plaintiff, that said sidewalk over which he was about to pass had been washed and requested him not to pass over said sidewalk but to pass in the street, and you further find that plaintiff could have easily and conveniently avoided passing over said sidewalk by taking another safe and convenient way and that there was plainly at hand another safe and convenient way which he could easily and readily have taken in going we way he desired to go, and that nevertheless he attempted to pass over said sidewalk and in consequence fell and received his injuries, then I instruct you plaintiff cannot recover and you must find in favor of defendant.
"17. If you find that the said sidewalk in front of defendant's said building was before and at the time defendant began to wash said sidewalk greasy and in consequence dangerously slippery and seriously dangerous to defendant, the members of his family then living in said building, and to pedestrians that should pass over said sidewalk and seriously *Page 206 impaired to defendant the enjoyment of said building, then I instruct you that the defendant had the right to remove said danger from said sidewalk by the reasonable use of the means necessary to remove said danger, even though he did so within the hours of 8 o'clock A. M. and 6 o'clock P. M."
These proposed instructions state the law with substantial correctness, and, we think, were within the issues of fact before the jury on the evidence.
Plaintiff himself testified that as he approached this strip of sidewalk the defendant was in front of his premises turning the water upon and over the sidewalk from an inch and a half hose, and that the water was running over the surface of the walk. He, therefore, knew that the sidewalk was wet. Defendant states in his testimony that he warned plaintiff of the condition of the walk. He testified: "When plaintiff came out of Mrs. Modena's house he was coming down in this manner [witness illustrates by staggering] and when he was in front of me and I told him to pass on that side for it was damp on this side. He was about to approach and pass in front of me, he don't want to go on the other side but he come on towards me, . . . and at the same time he fell on the ground."
Conceding that defendant was negligent and that the sidewalk was in a dangerous condition by reason of defendant's fault, this did not justify the plaintiff in passing over it if he had knowledge or warning of its condition and if he knew, or ought as a reasonable man to have known, that he was liable to slip and fall.
The evidence presented an issue on this point and plaintiff was entitled to an instruction as to plaintiff's duty under such a state of facts.
The fact that defendant had wrongfully and unlawfully created a dangerous condition of the sidewalk would not excuse plaintiff in exposing himself to injury if he knew or had warning of the dangerous condition and could with a slight change of route have avoided it.
[7] It is said there is no evidence in the record that there was any conveniently wife alternative open to plaintiff to avoid passing down this walk. It sufficiently appears that the locality of the accident was a downtown street of the city of San Francisco. It may be presumed as a matter of common knowledge that there were two sides to the street with *Page 207 sidewalks on each side, and a roadway between. It also may be inferred from the record that it was a residence district and presumptively not so congested with travel that a pedestrian could not safely make a detour around a dangerous place in the sidewalk. It, at most, was fairly a matter for the jury to determine whether or not in the exercise of reasonable prudence the plaintiff should have made an attempt to avoid this wet sidewalk. The instruction as to his duty in the premises, if he knew or was warned of his danger, should have been given.
[8] We think, also, the instruction should have been given informing the jury that the presumption of negligence from disobedience of the ordinance forbidding turning water on the sidewalk after 8 in the morning was not conclusive, but was subject to rebuttal by evidence of an overruling necessity for such act to avoid more serious danger to pedestrians passing over that portion of the street.
There was sufficient evidence bearing on this point to require its submission to the jury under such an instruction.
The judgment is reversed.
Shaw, J., and Lennon, J., concurred.