120 Wash. 391 | Wash. | 1922
— A discussion of the various assignments of error will introduce sufficient of the facts of this case to render unnecessary a detailed statement thereof. The respondent wife was injured upon a sidewalk in the city of Hoquiam, and brought this action for the damages she sustained. The jury awarded her a verdict, upon which judgment was entered and from which the city has appealed.
(1) The claim filed by the respondent with the city, in describing the condition of the sidewalk which is alleged to have caused the injury, used this language:
‘ ‘ that said boards were loose and there were no sills and the boards were not nailed or attached to any sills; that said defective condition had existed since said sidewalks were constructed, a period of more than seven months, and said conditions were well known to the city of Hoquiam, its officers and agents, ever since the sidewalk was constructed. That on account of said condition while traveling along said sidewalk at said time, the said Pearl Colquhon’s right foot was caught under the end of one of said loose and raised boards, causing her to fall and be thrown violently, her right knee striking the edge of one of the boards, badly bruising and tearing the muscles and flesh of said knee and breaking the bone or bones at said knee. ’ ’
We see no variance. The claim was that the respondent’s foot was caught in the end of the raised board, and the testimony went to the same effect, that she stubbed her toe on the board by reason of the fact that the board upon which she had just stepped tilted down, thus lowering it below the board ahead. There is nothing in the situation that misled the appellant, and there was a sufficient compliance with the provisions of the statute. Bell v. Spokane, 30 Wash. 508, 71 Pac. 31; Ellis v. Seattle, 47 Wash. 578, 92 Pac. 431; Titus v. Montesano, 106 Wash. 608, 181 Pac. 43.
(2) The appellant argues for a nonsuit on the additional ground that the respondent’s wife was guilty of contributory negligence. The testimony shows that the appellant had granted abutting property owners permission to take up a worn out wooden sidewalk and to replace it with a concrete one. The old sidewalk was removed and dirt had been filled in to make a foundation for a new walk, but before this could be laid the rainy season had set in and the cement walk could not be laid. On the surface of the fill, in order to provide
(3) This, in effect, disposes of another contention of the appellant that Mrs. Colquhon was guilty of contributory negligence, as a matter of law, for the reason that she did not take a safer way, to wit, a planked railroad track, situated in the middle of the street, which the testimony shows she had used on prior occasions, and which was largely used by the public in
(4) It is next urged that there was no evidence that the city had notice of the defective condition before the accident. The evidence, however, shows that permission had been granted by the city to abutting property owners to lay the walk, and it therefore had notice that the work was to be done, and was charged with the duty of seeing it was properly done. Noll v. Seattle, 29 Wash. 28, 69 Pac. 382; McClammy v. Spokane, supra; McKnight v. Seattle, 39 Wash. 516, 81 Pac. 998. Furthermore, the testimony shows the defective condition of the walk had existed for several months prior to the injury, and if this were true, and the jury had a right to believe it was, then the city was charged with notice of the actual condition, if in the exercise of reasonable care it knew, or should have known, of such
(5) In arguing for a directed verdict, the appellant claims that, in any event, the defect was not such a one as to render the city liable even if it had been negligent, for the reason that the city is not compelled to keep its streets in such condition that accidents cannot happen; that cities are not forced to see that their sidewalks are so perfect that no one can stub his toes thereon. It is true this sidewalk was in a thickly settled residence portion of the city where there was much travel, and the question was for the jury as to whether the sidewalk was actually unsafe and dangerous, and had been in such condition for so long that the city, in the exercise of reasonable care, either actually knew, or should have known, of the danger. As was said in the case of McKnight v. Seattle, supra:
“If this sidewalk rendered the street unsafe, it was the duty of the city to remove it or repair it, and its duty in this regard is not affected by the fact that it may not have constructed the walk.”
And as we said in Tait v. King County, 85 Wash. 491, 148 Pac. 586:
“The fact that the roadway may have been constructed by a private individual does not necessarily absolve the county from any duty to keep it in reasonable repair.”
(6) Upon motion for a new trial there was raised the most perplexing question in this case, being whether the verdict was excessive, amounting as it did to $16,000. The testimony showed that Mrs. Colquhon ivas a young woman, in good health, and that she suffered a fracture of the knee, and that her husband, at the time of the trial, had already assumed liability in the sum of $2,500 for surgical and medical attendance. The testimony is that the doctors discovered that she was suffering from bone cancer, which the jury had a right to believe from the testimony was the result of this injury. Operations have been performed for the removing of portions of the bone, and she is still undergoing radium treatment, looking to a cure. There was testimony of reputable doctors to the effect that bone cancer, such as this, is not only apt to but is very liable to spread to other portions of the body, and that in such, event death is practically certain to result, and there was some testimony that already the malignancy is spreading. Doctors appointed by the court and testifying for the appellant disputed these findings, but a question was presented for the jury to determine as to what the true situation was, and they must have found that it was very serious, with a reasonably sure prospect of fatal event. If this is so, we cannot say that $16,000 is an excessive compensation for the pain and suffering the woman has already endured and which she is reasonably certain to endure in the future. There is no standard measure into which we can pour the volume of her injury and say, in dollars and cents, that this much she has and will suffer and no more. After a thorough consideration of the question raised by this assignment, and several perusals of the state
The judgment is affirmed.
Parker, C. J., Main, Holcomb, and Hovey, JJ., concur.