OTTIE GILLESPIE et al., Respondents, v. CITY OF LOS ANGELES, Appellant, 36 Cal. 2d 553

TRAYNOR, J. Route 156 is a state highway extending from Chatsworth to Topanga Beach in Los Angeles County. From Ventura Boulevard in the city of Sherman Oaks west to the Pacific Ocean for about 20 miles through Topanga Canyon, the highway, commonly known as Topanga Canyon Road, is a twisting paved mountain road varying in width from 20 to 24 feet, with 6 to 8-foot shoulders of rock and oil or decomposed granite. About .86 of a mile of Topanga Canyon Road lies within the corporate limits of the city of Los Angeles.

On the morning of September 5, 1943, the burned wreckage of a 1933 Hupmobile sedan owned by plaintiff Ottie Gillespie was discovered at the bottom of Topanga Canyon below the part of the highway within the Los Angeles city limits, about 3.2 miles northeast of the junction of Topanga Canyon Road and the Roosevelt Highway at Topanga Beach. In the wreckage were the charred bodies of six people, from 19 to 24 years of age. There were no survivors of the accident and no eyewitnesses thereto.

Plaintiffs, surviving relatives of the victims of the accident, brought this action for wrongful death in the Superior Court of Los Angeles County, joining as defendants the city of Los Angeles and the State of California.

The complaint alleged that the accident was caused by defendants’ negligence in the design, construction, and maintenance of the highway, in that “said highway is so laid out and constructed as to make it appear that the same is straight and continuous at said point [at which the automobile presumably left the road] when in fact the same prescribes a horseshoe turn or curve, swinging sharply inward and returning to a line approximately even with the line of said highway immediately prior to said abrupt turn . . . the distance from said highway at said point to the bottom of said embankment being more than 150 feet . . . that there were and are no lights, blinkers, or warning signals of any kind or character at the approach to said curve to indicate or disclose the existence thereof . . . that there were and are no fences, guard rails, barriers, barricades or embankments or other safety devices around said curve or the approach thereto to apprise persons of the fact that the said highway curves at said point and does not.continue in a straight direction . . . that at said time and place and as a direct and proximate result of the said dangerous and defective condition as aforesaid, the said automobile . . . went off the highway and fell to the bottom of the embankment, at said point a distance of more than 150 feet.” It is plaintiffs’ theory that by reason of the alleged negligence of the city and the state in failing to warn approaching drivers of the existence of the curve, the driver of the automobile, while exercising due care for his own safety and that of his passengers, drove straight ahead on the road, not knowing that it curved sharply inward, and plunged off the road to the bottom of the canyon.

On the state’s motion, a change of venue to Sacramento County was granted. The trial court there sustained the state.’s objection to the introduction of any testimony and the action was dismissed against the state on the ground that the suit was one against it in its sovereign capacity to which it had not consented. Plaintiffs’ motion for retransfer to Los Angeles County for convenience of witnesses was granted. The cause proceeded to trial before a jury against the city, and the jury returned verdicts for plaintiffs aggregating $110,000. The city appeals from the judgments entered thereon.

The city’s principal contention is that it was not legally responsible for the condition of the state highway where the accident occurred because it had no control over, or authority with respect to, the maintenance of the highway. Plaintiffs contend, however, that under the provisions of the Public Liability Act of 1923 (2 Deering’s Gen. Laws, Act 5619, now Gov. Code, § 53051) the city is liable for dangerous or defective conditions in a highway whether or not it has control over it, and that in any event it had enough control over the highway in question to remedy the condition had it so wished.

The Public Liability Act of 1923 provides: ‘ ‘ Counties, municipalities and school districts shall be liable for injuries to persons and property resulting from the dangerous or defective condition of public streets, highways, buildings, grounds, works and property in all cases where the governing or managing hoard of such county, municipality, school district, or other hoard, officer or person having authority to remedy such condition, had knowledge or notice of the defective or dangerous condition . . . and failed or 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.” (Italics added.) Although it is clear from the wording of the statute that a city cannot be liable for a dangerous or defective condition of a public street or highway unless it has authority to remedy the condition, plaintiffs contend that the cases of Shea v.

City of San Bernardino, 7 Cal.2d 688 [62 P.2d 365], Bosqui v. City of San Bernardino, 2 Cal.2d 747 [43 P.2d 547], and Rose v. County of Orange, 94 Cal.App.2d 688 [211 P.2d 45], establish the rule that even if a municipality is without power to correct a dangerous or defective condition, it is under a duty to warn of its existence or request those with the necessary authority to remedy it. We cannot agree with this contention. In the Bosqui case a viaduct that was part of the system of city streets was allowed to fall into disrepair.

The city contended that under an order of the railroad commission, the utility operating the railroad over which the viaduct passed had the sole duty of repair. Far from holding that the city’s authority to remedy the condition was not a necessary prerequisite to liability under the Public Liability Act, the court took care to note that the order of the commission did not deprive the city of control over the viaduct or relieve it of its duty to remedy the condition. In the Shea ease a city street crossed a railroad track.

The city contended that the dangerous condition was caused by the elevation of the rails, over which the railroad commission had exclusive jurisdiction. The court held that the city was under a duty to request the commission to correct the condition or to warn the public of the danger. In the Rose case a county road ran at right angles into a state highway and terminated. There was a dangerous ditch at the side of the state highway opposite the end of the county road.

The court held that even though the county had no power to correct the dangerous condition bordering the state highway, it was under a duty to warn persons on the county road of the danger lying at its end. Both the Shea and the Rose cases are thus examples of situations where streets over which the city or county had control were made dangerous by conditions that the local governments could not control. In both cases, however, the city or county had authority at least to warn of the dangers.

They had control over their own highways and authority therefore to post warnings along those highways of the dangers created by conditions contiguous thereto. In the present case, however, the condition of the highway did not make a city street dangerous. The danger lay wholly on the state highway itself. If the city had no authority to remedy the condition of the state highway where the accident occurred it cannot be liable under the terms of the Public Liability Act for failure to do so.

Section 100 of the Streets and Highways Code, in effect in 1943 at the time the accident happened, provided: “The [state] department [of public works] shall have full possession and control of all State highways. . . . The department shall maintain any existing traversable highway which is between the termini of, and approximately on, any route included in the State highway system. ...”

Section 27 of the same code provides in part: “As used in the general provisions and in Divisions I and II of code, ‘maintenance’ includes: “ (

a) The preservation and keeping of rights of way, and each type of roadway, structure, and facility, in the safe and usable condition to which it has been improved or constructed. . . . “(

b) The necessary provision for special safety conveniences and devices. . . . “The degree and type of maintenance for each highway, or portion thereof, shall be determined in the discretion of the authorities charged with the maintenance thereof, taking into consideration traffic requirements and moneys available therefor.”

Section 204 provides: "The department shall exercise the same powers and duties with respect to State highways within cities as with respect to other State highways.” Under these provisions the state department of public works, not the city, has authority to remedy dangerous or defective conditions on state highways within the city limits. “The degree and type of maintenance” including “safety conveniences and devices” are to be determined by the state agency. It follows that the city is not liable for dangerous or defective conditions of state highways under these provisions. It is contended, however, that the city has power under

section 465 of the Vehicle Code to post warnings of dangerous conditions existing on state highways. That

section provides: “(

a) The State Department of Public Works, Division of Highways, shall place and maintain, or cause to be placed and maintained, with respect to highways under its jurisdiction, appropriate signs and signals as required hereunder, and may respectively place and maintain, or cause to be placed and maintained, such appropriate signs and signals as may be authorized hereunder, or as may be necessary properly to indicate and to carry out the provisions of this code, or to direct or warn traffic upon the highways. “(

b) Local authorities in their respective jurisdictions shall place and maintain or cause to be placed and maintained such traffic signs and, subject to the provisions of

Section 466, such stop signs, semaphores and control devices upon streets and highways as may be necessary to indicate and to carry out the provisions of this code or local traffic ordinances or to regulate, warn or guide traffic.” Under these provisions the State Department of Public Works has the duty to post traffic signs and signals on highways “under its jurisdiction”; local authorities “in their respective jurisdictions” have the duty to post such signs and signals on streets and highways.

Section 465 of the Vehicle Code and the foregoing sections of the Streets and Highways Code are m pari materia and must be construed together. (Ebert v. State of California, 33 Cal.2d 502, 509 [202 P.2d 1022]; People v. Trieber, 28 Cal.2d 657, 661 [171 P.2d 1]; In re Porterfield, 28 Cal.2d 91, 100 [168 P.2d 706, 167 A.L.E. 675]; Southern Pac. Co. v. Railroad Com., 13 Cal. 2d 89, 100 [87 P.2d 1055].) The State Department of Public Works has “full possession and control” of all state highways (Sts. & Hy. Code, § 100) including “State highways within cities.” (Sts. & Hy. Code, § 204.) Such highways are therefore “under its jurisdiction” within the meaning of

section 465 of the Vehicle Code. The duty to place and maintain the traffic signs and signals required by that

section is expressly placed on the State Department of Public Works. Moreover, it is that department only that determines the degree and type of maintenance including “safety conveniences and devices” for each state highway. (Sts. & Hy. Code, §§ 27, 100.) It follows that state highways are not within the jurisdiction of local authorities to control or maintain, and are therefore not “in their respective jurisdictions” under

section 465 of the Vehicle Code. To hold that a state highway, which the State Department of Public Works has “full possession and control of,” and for which that department determines the degree and type of maintenance, including safety conveniences and devices, is “in [the] respective jurisdictions” of local authorities would not only create a direct conflict between the two codes, but would lead to anomalous and unreasonable results. Both subdivisions (

a) and (

b) of

section 465 provide that the respective agencies “shall place and maintain” the required traffic control devices. If two or more agencies had the same mandatory duty, confusion would result when they sought to discharge their duties over the same highway, and the uniformity sought to be achieved by the state, highway system would be defeated. (See Atlas Mixed Mortar Co. v. City of Burbank, 202 Cal. 660, 663 [262 P. 334].) Moreover, the placement and maintenance of traffic signs and signals is only a part of the general duty to maintain streets and highways in a safe and usable condition.

Whether or not there is need for warning signs or signals will frequently depend on what other steps may be taken to render the highway safe and usable. In the present case, for instance, posting a warning sign would be only one of several means that might be adopted to apprise motorists of the curve ahead. Proper maintenance might eliminate the danger altogether, so that no warning would be necessary.

It would be unreasonable to conclude that the Legislature intended that the limited part of maintenance involving the placement and maintenance of traffic signs and signals should- be treated differently from the problem as a whole. Plaintiffs contend, however, that the city had both the authority and the duty to correct the allegedly dangerous condition under the terms of a contract between the city and the Department of Public Works whereby the state agency delegated authority to the city. (See Sts. & Hy.

Code, §§ 114, 116, 203.) The contract in question dealt with the allocation of gas tax funds and was a renewal of biennial agreements between the city and the state containing substantially the same terms dating back to 1934. It provided in substance that the city should perform general maintenance work on all state highways within the city limits with the exception of Route 156, here in question, and Route 205. General maintenance work on these routes was to be done by the state.

Plaintiffs nevertheless contend that failure to give proper warning of the curve was the cause of the accident, and that the city should have installed the necessary warning signs or barricades between the curb line and right of way line of the highway, on the ground that responsibility for maintenance of this area was delegated to the city under the terms of a miscellaneous provision of the contract. That provision provided: “The department will maintain the State highways from curb line to curb line only.

There is hereby delegated to the city the maintenance of the areas between curb lines and right of way lines, except when operations by the department are being conducted thereon in connection with the construction or maintenance work between the curb lines.” The city contends, however, that this provision was not intended to apply to a mountain road lacking the usual curbs and sidewalks of the ordinary city street.

It contends also that in referring to maintenance of the area beyond the curb line the parties had in mind such maintenance as might be necessary to make the area itself safe for use, not such maintenance within that area as might be necessary to make the roadway safe and usable. It is clear when the contract is read in the light of the surrounding circumstances that the parties did not intend to apply the quoted provisions to the short

section of Route 156 that cuts across an outlying corner of the city’s territory. The parties did not interpret their agreement as imposing upon the city any duty with respect to the maintenance of Route 156. State engineers testified that the state did all the maintenance work on the, highway including the placing of warning signs and safety devices. The “construction given the contract by the acts and conduct of the parties with knowledge of its terms, before any controversy has arisen as to its meaning, is entitled to great weight and will, when reasonable, be adopted and enforced by the courts.” (Woodbine v.

Van Horn, 29 Cal.2d 95, 104 [173 P.2d 17].) The construction placed upon the contract by the parties in the present case is not only reasonable, but a contrary construction would be unreasonable. Route 156 is a mountain road, lacking the sidewalk area whose maintenance could reasonably be separated from that of the roadway. Moreover, less than one twentieth of the mountain

section of the highway lies within the city limits. The only access to this

section is from the road itself on either end, and the general character of the highway remains unchanged as it passes into and then out of the city limits. It would be unreasonable to conclude that the parties intended that the state maintain the whole of the highway up to the city limits, then only the pavement for the next fraction of a mile, and then resume maintenance of the whole, leaving to the city the responsibility for maintaining the borders of the road for the fraction of a mile in between.

Even if it is assumed, however, that under the terms of its contract the city was responsible for maintaining the area beyond the traveled portion of the highway, its duty of maintenance was defined and limited by the contract.

The maintenance clause provided: “Maintenance work shall be adequate to keep the roadway, structures, and facilities in the safe and usable condition to which they have been constructed or improved, and provision shall be made for constantly making needed repairs to preserve a smooth surface. “Maintenance work shall be satisfactory to the department, and should the department at any time consider the maintenance of the State highway routes or any portion of the routes unsatisfactory and inadequate for the traffic needs and conditions thereon, and if the city does not correct the unsatisfactory condition after due notice from the department, the department may enter upon such State highway route and maintain such street with its own forces, and the cost will be defrayed from the % cent gas tax allocated for expenditure upon State highways within the city.” Under this provision the city’s duty of maintenance was limited to keeping “the roadway, structures, and facilities in the safe and usable condition to which they have been constructed or improved.” It was under no duty and it lacked authority to add additional structures and facilities.

The department of public works retained the authority under the contract to determine when maintenance beyond keeping the highway in the condition to which it had been constructed or improved was necessary to make the routes satisfactory and adequate for the traffic needs and conditions thereon. There is no evidence that Route 156 was not maintained in the condition to which it was constructed or improved at the time the city first undertook maintenance duties under its contract.

Plaintiffs contend, on the contrary, that the curve was dangerous and defective because additional warnings were not provided and that the city is responsible because, after having knowledge of the dangerous condition, it failed to provide them. Under, its contract, however, it had no authority to do so. Since the judgment must be reversed no purpose would be served by considering the appeal from the order denying defendant’s motion to vacate the judgment. Accordingly, the appeal from the order denying the motion to vacate the judgment is dismissed. The judgment is reversed.

Shenk, J., Edmonds, J., and Spence, J., concurred.