85 Wash. 64 | Wash. | 1915
— Theplaintiff, E. T. Harris, commenced this action in the superior court for Kitsap county, seeking recovery of damages which he alleged resulted to him from the negligence of the defendant city in the maintenance of a floating public wharf used for the landing of launches and other small water craft. Tidal before the court and a jury resulted in a verdict and judgment against the city, from which it has appealed to this court.
The city maintains a floating wharf for the use of the public at which small water craft land to receive and discharge passengers. The wharf consists of two floats, each being sixteen feet wide and approximately forty feet long. They lie end
At the time respondent was injured, he was operating a launch for hire, being engaged in ferrying passengers between Port Orchard and Bremerton and other points in that neighborhood. He had landed his launch at the wharf to receive and discharge passengers some five or six times only, the wharf being open to the public only a short time. He had never actually been upon the wharf, though he knew in a general way of the manner of its construction and of the open spaces and apron between the two floats of the wharf. On the night of April 5, 1913, about ten-thirty o’clock, he landed at the wharf with his launch. He stepped from the launch upon the wharf and, evidently with the view of reaching the bow of his launch and tying it to the wharf, walked along the wharf and fell into one of the open spaces between the floats, breaking one of his legs and receiving other severe injuries of which he now complains. He apparently momentarily forgot the open space between the floats, and, it then being in the shadow of the pile, he did not see it and was not reminded of it. There is some evidence tending to show that the city knew of the danger of these open spaces in the shadow of the pile at night, and, also, that it knew of other persons having been injured by falling into them.
Some contention is made that the evidence was not sufficient to support the conclusion that the city was negligent in the maintenance of the wharf with the open space therein. We think this contention cannot be sustained as a matter of law, in view of the hidden danger which existed because of the open spaces, and their not being readily observable at night by reason of the shadow of the pile being thrown upon
It is also contended that respondent was guilty of contributory negligence, in the light of his knowledge of the manner of the construction of the wharf. We are unable to so decide as a matter of law. If the open space.had been so apparent at the time that one could have readily seen it and thus been reminded of the danger, there would possibly be merit to this contention, but momentary forgetfulness may absolve one from the charge of contributory negligence when the danger is so hidden as not of itself to be a reminder of its existence to one coming within its presence. We have repeatedly held that mere forgetfulness of hidden danger with which one may be acquainted does not necessarily, as a matter of law, constitute contributory negligence. Jordan v. Seattle, 26 Wash. 61, 66 Pac. 114; Williams v. Ballard Lumber Co., 41 Wash. 338, 83 Pac. 323; Blankenship v. King County, 68 Wash. 84, 122 Pac. 616, 40 L. R. A. (N. S.) 182.
It is contended that the trial court erred in rulings made upon the pleadings and in excluding evidence which in effect eliminated from the case the question of respondent’s being a trespasser upon the wharf at the time he was injured, which question counsel for the city sought to bring into the case with the view of defeating respondent’s right of recovery. The fact thus sought to be proven was, in substance, that the city required' all persons operating launches or boats for hire to pay wharfage for the privilege of landing at the wharf, and that respondent had failed to make such payment and therefore had no right to land his launch there. The law which regards the maintenance of a wharf for the use of the public as an invitation to all persons to go upon it who may have use for it is stated in 40 Cyc. 917, as follows:
In view of the public use to which the wharf was admittedly intended by the city, and the implied invitation to the public to go upon it and use it, we think that the mere fact that the respondent had not paid the wharfage did not render him a trespasser to the extent that thereby he lost such right of protection against personal injuries received through the city’s negligence when he was upon the wharf as other members of the public had. It may be that the city could have prevented him from landing his launch at the wharf without first paying the wharfage, but the city did not do so. We think that whatever failure there may have been on the part of the respondent to pay for this privilege, it did not ¡affect his rights sought to be enforced in this action. City of Petersburg v. Applegrath’s Adm’r, 28 Graft. 321, 26 Am. Rep. 357; Swords v. Edgar, 59 N. Y. 28, 17 Am. Rep. 295; Lowe v. Salt Lake City, 13 Utah 91, 44 Pac. 1050, 57 Am. St. 708.
Counsel for the city contends that the trial court erred in giving instructions to the jury. We do not find in the statement of facts any exception to the instructions complained of. Under our decisions in Coffey v. Seattle Elec. Co., 59
By this same method of identification, appellant’s counsel had, in the same paper only, attempted to except to the refusal of the court to give certain instructions x*equested by him to be given. Of these claimed errors we think it is sufficient to say that we have carefully read all these x’equested instructions and are clearly of the opinion that they were given in substance in so far as the facts of the case call for instructions upon matters therein requested. In connection with these claimed errors, we also pass the question of the proper preservation of exceptions to the refusal of the court
Contention is made that the verdict of the jury is excessive to the extent that it evidences jjrejudice and passion on the part of the jury. We deem it sufficient to say that careful review of the evidence convinces us that the verdict of the jury should not be disturbed upon this ground.
The judgment is affirmed.
Moeeis, C. J., Holcomb, Mount, and Chadwick, JJ., concur.