This cause was transferred to this court

after decision by the District Court of Appeal to give further consideration to the contention of the appellant that the decision of the District Court of Appeal was in conflict with certain prior decisions of that court and particularly the decisions in the eases of Waldorf v. City of Alhambra, 6 Cal. App. (2d) 522 [ 45 Pac. (2d) 207 ], and Robertson v. City of Long Beach, 19 Cal. App. (2d) 676 [ 66 Pac. (2d) 167 ]. After a careful study of those decisions, we find no conflict between them and the decision of the District Court of Appeal in the present action. While the collision in each of these cases occurred upon a street in which there was a “jog” or “offset” at the intersection of said street, in the Waldorf and Robertson cases, the driver of the automobile after crossing over the intersection collided with the curb and sidewalk in front of the abutting property which extended beyond the property line on the opposite side of the cross street. In other words, he ran over and upon the curb and sidewalk along the property which formed the “jog” in the street. It was held that the curb, sidewalk, and the parkway with the trees growing in the parkway, in front of that portion of the property included within the jog or offset “constitute a barrier or warning sufficient to avert disaster and as readily visible to the alert driver as a sign informing him of the condition” in the street. In the present action the driver did not collide with the jog in the road, but drove across the intersection onto the unpaved right of way of the railway company, and there was no curb, sidewalk, or parkway, or other barrier to warn him of the changed condition in the highway. The curb referred to in the present action was not across the course which the automobile was traveling as it was in each of the two cases cited by appellant, but was parallel to said course and only a surface of some eight inches square was visible to the driver. Due to the fact that the street west of the crossing was only 40 feet wide, it was necessary for the driver to operate the automobile along or near the car track. This course when continued beyond the crossing brought him onto the unpaved portion of the railway right of way, and as we have just stated, there was no barrier of any kind whatever to inform bim of the changed condition in the street. *251 As stated in the opinion of the District Court of Appeal, “when dealing with eases falling within the provisions of Public Liability Act of 1923, each of such cases must depend upon its own state of facts”. As the factual situations in the Waldorf and Robertson cases were fundamentally different from that in the instant case, the decision in those cases should not control the present decision. We, therefore, adopt the opinion of the District Court of Appeal, written by Presiding Justice York, as the opinion of this court. It is as follows:

“ To warrant a recovery under the Public Liability Act (Stats. 1923, p. 675), the following conditions must exist: ‘ (1) The injury to the plaintiff must have resulted from a dangerous or defective condition of a public highway, street, ... ; (2) the city council or other governing board or some officer or person having authority to remedy the condition must have had notice or knowledge thereof; (3) it, or he, must have failed or neglected to remedy the dangerous or defective condition within a reasonable time after acquiring knowledge or receiving notice; or (4) must have failed to take such action as might be reasonably necessary to protect the public against the dangerous or defective condition within a reasonable time after knowledge or notice. ’ (9 Cal. Jur. Supp. 627, citing Bosqui v. City of San Bernardino, 2 Cal. (2d) 747, 759 [ 43 Pac. (2d) 547 ]; Nicholson v. City of Los Angeles, 5 Cal. (2d) 361 [ 54 Pac. (2d) 725 ].) The theory of the act seems to be that liability is imposed not alone for the dangerous condition, but for the failure to remedy it, upon knowledge or notice thereof. (Watson v. City of Alameda, 219 Cal. 331 [ 26 Pac. (2d) 286 ].) Whether or not the requisite conditions are present should usually be determined from the facts of the particular ease; the factors which contribute to produce a result are so varying that no hard and fast rule may find practical application to the great majority of cases. (Wal dorf v. City of Alhambra, 6 Cal. App. (2d) 522 [ 45 Pac. (2d) 207 ].)

“ In connection with its first point, appellant urges that ‘ the case at bar is analogous in principle to the physical conditions that prevail as described by the court in the cases of Waldorf v. City of Alhambra, 6 Cal. App. (2d) 522 [ 45 Pac. (2d) 207 ]; Robertson v. City of Long Beach, 19 Cal. App. (2d) 676 [ 66 Pac. (2d) 167 ]. These two cases are analyzed *255 by the Supreme Court in the recent decision in the case of George v. City of Los Angeles, 11 Cal. (2d) 303 [ 79 Pac. (2d) 723, 726 ], where it was said: ‘In each of these cases the injury was caused by a collision of an automobile with a “jog” or “offset” in the street along which the automobile was being operated. It was held in the Waldorf case, and followed in the other cited case, that there is no law of this state which requires a municipality to maintain barriers or warning devices at “jogs” or “offsets” in the streets of a municipality; that in almost every city of size in the state some streets are laid out and improved without uniformity as to width or direction, resulting in “jogs” or “offsets” and that where there is nothing in the construction of such a street to conceal its real condition, no liability attaches to the municipality for injuries arising out of such construction.

“ ‘The factual situation in each of these two eases differs materially from that existing in the present action. It is well settled in this state that when dealing with cases falling under the provisions of the Public Liability Act of 1923, each of such eases must depend upon its own state of facts and that no hard and fast rule can be applied in the great majority of eases. (Rafferty v. City of Marysville, 207 Cal. 657 , at page 660 [ 280 Pac. 118, 119 ]; Waldorf v. City of Alhambra, 6 Cal. App. (2d) 522, at page 526 [ 45 Pac. (2d) 207 ] ; Hook v. Gity of Sacramento, 118 Cal. App. 547 [ 5 Pac. (2d) 643 ].) In each of the Waldorf and Robertson cases, as we have seen, the claimed dangerous condition .was a “jog” or “offset” in the street at its intersection with a cross-street, where the abutting property extended beyond the property line on the opposite side of the cross-street. The abutting property was surrounded by a curb some six inches in height, and there was also a sidewalk and parkway within the curb line. These, the court held, constituted barriers or warnings sufficient to avert disaster and readily visible to the driver of an approaching automobile. ... By reason of the marked difference in the factual situation in the present ease from those shown to have existed in the case of Waldorf v. City of Alhambra , and Robertson v. City of Long Beach, supra, we are unable to agree with the respondent city that the decisions in those cases are determinative of the issues involved in the instant ease. As the complaint in this ease set forth facts showing the existence of a dangerous and defective condition in Alie *256 sandro street, together with notice of such condition by the officers of the city and their failure to remedy such condition, it met all requirements of the statute, and was not vulnerable to a general demurrer. The court, therefore, erred in sustaining said demurrer. ’

“The intersection of Glenoaks boulevard and Providencia avenue reveals a much more complicated situation than a mere ‘jog’ or ‘offset’ in the street. Admittedly, there is a jog in Glenoaks boulevard, but added to that is the unpaved railway right of way commencing at the easterly side of the intersection, as well as the fact that the northerly curb of the paved portion of Glenoaks lying southerly of and adjoining the unpaved right of way came to an abrupt stop presenting at a point within the intersection a face eight by eight inches which any driver, even though using ordinary care, might easily overlook because of its inconspicuous aspect to one approaching the intersection from the west. There is evidence in the record that the driver turned abruptly to the right to avoid hitting the tall pole on the railway right of way and in so doing he struck the unprotected and inconspicuous end of the curb and thereby lost control of his car. There is no ‘jog’ or ‘offset’ in the car track at this point; continuing from the west, it traverses the intersection and then passes in a straight line over the unpaved right of way to the east of the intersection. There is also evidence in the record that at the time of the accident there was no visible warning to the driver of a machine traveling easterly into the intersection, ‘straddling’ the car track, that he could not continue to drive his automobile along the car track and upon the right of way, but that he must turn either to right or left to avoid disaster. Because of the lack of visibility at the time of day when the accident occurred, the small projecting end of the curb would appear to one approaching from the west to be a part of the unpaved right of way.

“Minutes of the city council of Burbank introduced in evidence disclose that on February 20,1934, Howard I. Stites, city manager and city engineer in charge of repair and maintenance of streets and highways, knew and recognized the hazard to traffic which existed at this intersection and had then reported ‘that deeds for right of way are being secured to widen the roadway there and lessen the traffic hazard at that corner’. Called as a witness Mr. Stites was asked if ‘on February 20, 1934, when you appeared before *257 the council as the city manager and as the city engineer and discussed the obtaining of an easement over the right of way of the Pacific Electric Railway Corporation, it was for the purpose of widening or setting back those curb lines, was it not í ’ He replied: ‘ It was. ’ In September, 1934, appellant acquired an easement over two triangular strips of land embraced within the railway right of way and lying along the northerly and southerly sides of said right of way at its junction with the easterly line of the intersection. Mr. Stites testified that this deed was secured from the railway company for the purpose of widening the street, doing away with the bottleneck condition and setting back the curbs. The minutes of October 23,1934, reveal that the traffic hazard which then existed at this intersection would be removed upon completion of the contemplated improvement. However, the matter was allowed to rest and nothing was ever done to warn the motoring public that a dangerous condition existed at this corner. It was a year after the deed had been secured that the accident which is the basis of this action occurred. Having been fully cognizant of the hazard there existing, it was the legal duty of the appellant to take proper steps to eliminate such hazardous condition. Its failure ‘to take such action as may be reasonably necessary to protect the public against such dangerous and defective condition’ (Stats. 1923, p. 675), constituted negligence as contemplated by said Public Liability Act.

“ The contributory negligence of the driver of the car involved herein was pleaded as a defense by appellant. The jury having found to the contrary, it is beyond the power of this court to interfere, taking into consideration all of the facts and circumstances disclosed by the record. ‘It is only where the inference of negligence is irresistible that it becomes the duty of the court to decide upon it as a matter of law, and, where the facts or the inferences to be drawn from them are in any degree doubtful, the only proper rule is to submit the whole matter to the jury under proper instructions. ’ (Van Praag v. Gale, 107 Cal. 438 [ 40 Pac. 555 ].)

“ With respect to appellant’s third point: In both Bennett v. Kings County, 124 Cal. App. 147 [ 12 Pac. (2d) 47 ], and Edwards v. San Diego, 126 Cal. App. 1 [ 14 Pac. (2d) 119 ], which were actions brought under the provisions *258 of the Public Liability Act, damages for wrongful death were allowed. In the Bennett case, referring to said act, the court at page 150 said: ‘The first point raised is that the demurrer to the complaint should have been sustained. It is contended that the statute upon which this action is based (Stats. 1923, p. 675, sec. 2) is in derogation of the common law and must be strictly construed, and that since it does not specifically give a right of action to the heirs of a deceased person, such an action cannot be maintained. It is argued that those cases where such an action has been permitted or which have been treated as if such right existed, are not in point, since this particular question was not therein raised (see Gorman v. County of Sacramento, 92 Cal. App. 656 [ 268 Pac. 1083 ]; Brooks v. City of Monterey, 106 Cal. App. 649 [ 290 Pac. 540 ].) A part of the act in question reads: “Counties . . . shall be liable for injuries to persons and property, resulting from the dangerous or defective condition of public streets, highways ...”

“ ‘Aside from the consideration of any other statutes, we are unable to see why the “injuries to persons”, referred to in this statute, do not include such injuries as may be caused to persons by reason of the death of others as well as injuries to persons directly involved not resulting in death. We think the injury suffered by these plaintiffs is covered by the statute and that the demurrer was properly overruled. ’

“ As to appellant’s complaint that the damages awarded for the wrongful death are excessive, the amount of damages in this kind of an action is committed first to the sound discretion of the jury, and next to the discretion of the judge of the trial court, who, in ruling upon the motion for a new trial, may consider the evidence anew, determine anew the facts and set aside the verdict if it is not just. ‘Upon appeal, the decision of the trial court and the jury on the subject cannot be set aside unless the verdict is so plainly and outrageously excessive as to suggest at first blush passion, prejudice or corruption on the part of the jury. ’ ” (Gorman v. County of Sacramento, 92 Cal. App. 656, 667 [ 268 Pac. 1083 ], and cases there cited.) There is nothing in the record presented here which even suggests passion, prejudice or corruption on the part of the jury.

“Appellant in its supplemental opening brief claims error by the trial court in giving three certain instructions *259 to the jury on the question of general negligence. In its closing brief, appellant admits that some of these individual instructions were proposed by it, and then calls attention to a fourth instruction which it also proposed but which it now claims was erroneously modified by the trial court. Taken as a whole, the instructions which were given fully and fairly presented the issues to the jury, and if any such error existed, it was so slight as to be entirely harmless and resulted in no prejudice to appellant’s cause.

“From what has heretofore been said, it is apparent that there is not merit in appellant’s fifth point. The third amended complaint was sufficient as against a general demurrer, and there was no error on the part of the trial court in denying appellant’s motion for nonsuit and for directed verdict.

“The verdict is amply supported by both the law and the evidence.”

The judgment is affirmed; the appeal from the order denying motion for a new trial is dismissed.

Seawell, J., Waste, C. J., and Langdon, J., concurred.