[Civ. No. 2460.

Second Appellate District, Division One.

November 15, 1919.]

#### MARY MARTON, Respondent, v. J. L. JONES, Appellant.

[1] Pleading—Action fob Damages fob Personal Injuries— Amendment of Complaint—Correction of Name of Plaintiff.— In an action for damages for personal injuries there is no abuse of discretion on the part of the court in permitting the plaintiff to file an amendment to her complaint, substituting for the name “Mary Neff,” as plaintiff in the title of the original complaint, that of “Mary Marton,” which is her true name.

[2] Id.—Married Woman Living Separate from Husband—Eight to Sue Alone — Immaterial Finding. — In such action a finding that plaintiff was the wife of a given person, from whom, by reason of his deserting her, she was living separate and apart, though not within the issues and without support of evidence, is immaterial and without prejudice. Under the provisions of section 370 of the Code of Civil Procedure, a married woman, though living with her husband, is entitled to sue for damages due to personal injuries sustained, without joining her husband as plaintiff.

[3] Negligence—Maintenance of Fence Contrary to Ordinance— Injury to Pedestrian—Fall Caused by Pebble on Sidewalk— Proximate Cause of Injury.—The fact that plaintiff would not have been injured but for the existence upon the sidewalk of a pebble which caused her to fall, striking a sharp-pointed projection of a barbed-wire fence constructed by defendant around his premises, contrary to a city ordinance, would not relieve defendant from liability where the consequence ought to have been anticipated as a probable result of his negligent act.

3. Proximate cause and intervening condition, note, 1 Ann. Cas. 230.

*300
      [4] Id.—Presence of Foreign Substances upon Sidewalk — Duty ■ of Defendant to Anticipate Consequences.—To find fruit peel, leaves and twigs from overhanging trees, pebbles, and other foreign substances upon sidewalks is a matter of common experience, and that such a condition might cause a pedestrian, to slip or fall, in which event he probably would be injured by the barbed-wire fence constructed adjoining the sidewalk, contrary to the city ordinance, was a consequence which defendant should have anticipated as likely to result from his negligent act.

APPEAL from a judgment of the Superior Court of Los Angeles County. John M. York, Judge.

Affirmed.

The facts are stated in the opinion of the court.

Joseph P. Sproul, Lewis D. Collins, Charles E. Barrett and Leonard G-. Húsar for Appellant.

Paul M. Nash for Respondent.

SHAW, J.

At the times in question defendant maintained around his premises and adjoining the sidewalk a fence constructed in part of barbed wire, contrary to a city ordinance of the city of Los Angeles. Plaintiff,- while in 'the exercise of due care, was walking along the sidewalk and stepped upon a pebble thereon, which caused her to fall, and, in falling, threw her hand out, striking a sharp-pointed projection of the barbed wire so maintained as a part of the fence, as a result of which she received injuries for which, in this action, judgment was rendered in her favor, and from which defendant has appealed on the judgment-roll.

[1] There was no abuse of discretion on the part of the court in permitting plaintiff to file an amendment to her complaint, substituting for the name “Mary Neff,” as plaintiff in the title of the original complaint, that of Mary Marton, which was her true name. *(McDonald*v. *Swett,*76 Cal. 257, [18 Pac. 324].) In no event could defendant have suffered any prejudice by the ruling. (Code Civ. Proc., sec. 475.)

[2] While not alleged in the complaint, the court found that plaintiff was the wife of J. D. Marton, from whom, by reason of his deserting her, she was living separate and apart. Complaint is made that such finding is not within the issues and without support of evidence. Conceding this *301contention well founded, nevertheless the finding is immaterial and without prejudice, for the reason that, under the provisions of section 370 of the Code of Civil Procedure, plaintiff, though married and living with her husband, was entitled to sue for damages due to personal injuries sustained, without joining her husband as plaintiff.

[3] Appellant’s chief contention is that the conceded negligence of defendant in maintaining the barbed-wire fence on his premises in proximity to the sidewalk in violation of the ordinance *(Orcutt*v. *Pacific etc. Ry. Co.,*85 Cal. 291, [24 Pac. 661]) was not the proximate cause of plaintiff’s injury. This contention is based upon the assertion that she would not have come in contact with the barbed wire if she had not fallen, and she would not have fallen but for the pebble on the sidewalk upon which she stepped; therefore, it is argued, the pebble and not defendant’s negligent act was the proximate cause of her injury.

While the existence of the pebble on the sidewalk was an intervening contributing cause of the injury, nevertheless such fact should not exempt defendant from liability, if, according to the usual experience of mankind, the consequence ought to have been anticipated as a probable result of his negligent act. As said in *Lane*v. *Atlantic Works,*111 Mass. 136: “The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen.” To the same effect is *Roots Co.*v. *Meeker,*165 Ind. 132, [73 N. E. 253], Hence the negligence predicated upon the agency responsible for the existence of the pebble upon the sidewalk cannot relieve defendant from liability for the injury sustained by plaintiff, unless it appears so remote and disconnected in time and nature that it can be said the damage occasioned was in no way a natural or probable consequence of his wrongful act in maintaining the unlawful fence. *(Merrill*v. *Los Angeles Gas etc. Co.,*158 Cal. 499, [139 Am. St. Rep. 134, 31 L. R. A. (N. S.) 559, 111 Pac. 534].) [4] To find fruit peel, leaves and twigs from overhanging trees, pebbles, and other foreign substances upon sidewalks is a matter of common experience, and that such a condition might cause a pedestrian to slip or fall, in which event he probably would be injured by the barbed wire, was a consequence which *302defendant should have anticipated as likely to result from his negligent act.

The judgment is affirmed.

Conrey, P. J-., and James, J., concurred.