47 Wash. 552 | Wash. | 1907
This is an action by the respondent against appellants for an alleged breach of conditions contained in certain franchise ordinances, wherein appellants agreed to keep certain portions of Railroad avenue in the city of Seattle planked and in repair, and to save the city harmless from the payment of any and all damages growing out of, or in any way connected with, the rights, privileges, or franchises granted by said ordinances. The facts out of which the litigation arose are about these: In September, 1900, one Edwin Eskildsen, a boy four years of age, while walking along Railroad avenue, caught his foot in a small hole in the planking near one of the Northern Pacific Railway Company’s tracks, and his leg was run over and cut off by a passing train. Through his guardian he instituted an action in the circuit court of the United States for the district of Washington, against the Northern Pacific Railway Company to recover damages for the injury mentioned. The cause came on for trial before the court and a jury, and a verdict was returned in favor of the defendant, and on March 1, 1901,
Thereafter in March, 1901, said minor, through the same guardian, began an action in the superior court of King county, Washington, against the city of Seattle, to recover damages arising from the identical accident and injury charged in the other action, and alleging the said injury to have occurred in a public street through the negligence of said city. A verdict was returned against the city, and thereupon judgment was entered in favor of said minor, on September 28, 1901. From this judgment an appeal was taken to the supreme court of the state, which on October 13, 1902, affirmed said judgment. Eskildsen v. Seattle, 29 Wash. 583, 70 Pac. 64.
The present action was commenced on October 10, 1905. The appellant the Northern Pacific Railway Company made an answer denying that the accident to Eskildsen occurred in a public street, but alleged that it occurred upon the grounds owned and occupied by the railway company. It also pleaded the statute of limitations and that, if liable at all for the accident, it was as a joint tort feasor with the city, and consequently not liable over to it. It further sets forth, as an affirmative defense, the suit against it and the judgment in its favor in the United States circuit court; that when it was called upon by the city to defend the action of Eskildsen against the city, it declined to do so, but informed the city of the action by Eskildsen against it in the Federal court, and asked the city to plead and interpose the same as a defense, and offered to furnish the evidence to establish such defense. To this last-mentioned affirmative defense, the city interposed a demurrer which was by by the trial court sustained, and this action is assigned as error.
The appellant the Columbia & Puget Sound Railroad Company answered the complaint of respondent, denying most of the material allegations, and denying that it was called upon
As to the statute of limitations, respondent contends that the obligation arose from a written instrument, and that the action could be brought at any time within six years from the time it accrued. Appellants claim- that the action is founded, not upon a direct liability of appellants, but upon an instrument creating only a collateral security in favor of the city; that it was in effect upon a contract express or implied, and not in writing nor arising out of any written instrument; and it is contended that the action accrued when the judgment of Eskildsen against the city was entered on September 28, 1901, instead of October 18, 1902, when the judgment was affirmed by the supreme court. It also suggested that the ordinance does not have reference to personal injuries occasioned by defective planking, and that the only liability is the common law obligation to answer over, and that this would fall within the two-year limitation of the statute. We do not think this latter contention can be upheld. Doubtless the three or the six-year limitation applies, and assuming but not deciding that it be the three-year limitation, we think the action was brought in time, for the reason that the period should be measured from the date of the affirmance of the judgment by the supreme court, or perhaps from the date of payment of the judgment by the city, rather than from the time of the original entry of judgment in the supei'ior court.
The Northern Pacific Railway Company pleaded affirmatively the judgment which it obtained against Eskildsen in the Federal court, and-urges that the sustaining of the demurrer to this defense by the superior court was error, for the reason that the grounds which are now urged against it as a basis of liability to the city are the identical grounds which were alleged against it by Eskildsen in the case in the Federal court, and upon which the trial was there had, result
On account of these errors, the judgment of the honorable superior court is reversed, and the cause remanded for further proceedings not inconsistent with the views herein expressed.
Hadley, C. J., Rudkin, Crow, and Mount, JJ., concur.
Fullerton, J., dissents.