49 Wash. 134 | Wash. | 1908
This is an action against the city of Sedro-Woolley to recover damages for personal injuries alleged to have been received upon a street in said city. The action was brought by A. J. Larsen and Petricka G. Larsen, as husband and wife, but the injuries were sustained by the wife, Petricka G. Larsen. They allege in their complaint that Murdock street in said city is one of the public thoroughfares thereof, and that along the west side of the street a sidewalk has been constructed as a part of the street, both sidewalk and street having at all times been generally used by the public; that one Shrewsbury was engaged in the operation of a planing and wood-working mill on land lying on the west side of said street and abutting thereon, the building in -which the machinery was operated being so constructed that it was adjacent to the sidewalk; that for a period of about two years prior to the accident sustained by Mrs. Larsen, Shrewsbury, in conducting the business of the mill, was in the habit of
The appellant assigns as error that the court denied its motion for nonsuit, and also its challenge to the legal sufficiency of the evidence at the close of all the testimonj
It is furthermore urged that the evidence shows the injuries to be due to Mrs. Larsen’s own contributory negligence. We have repeatedly held that this subject is ordinarily for the jury, and we do not think the evidence in this case is such as to take it out of the general rule. Appellant argues, however, that contributory negligence appeared as a matter of law, for the reason that Mrs. Larsen was upon the park strip of the street, between the curbing and sidewalk, when she received her injuries, it being contended in effect that she had not the right to go there. The park strip was within, and was a part of, the street. There was evidence to the effect that lumber was so placed from an opening in the wall of the mill and reaching across the entire width of the sidewalk that Mrs. Larsen could not pass along the sidewalk; that lumber was also piled upon the adjacent park strip and further out into the traveled part of the street; that there was a small space between the lumber upon the sidewalk and that upon the park strip, through which she was attempting to pass when the projecting timber caused her to fall; that to have cleared all lumber she would have been compelled to go out to or beyond the middle of the street. Under such circumstances it should not be said as a matter of law that Mrs. Larsen was guilty of contributory negligence in going upon the park strip. It is true, that strip is improved in a peculiar manner, for ornamental purposes, and it is not expected that persons will ordinarily travel upon it. But as it is a part of the highway, it cannot be said that under no circumstances do travelers have
“But if the traveled portion of the highway is obstructed or dangerous, making it necessary for a traveler to deviate therefrom, and in so doing he uses ordinary care, the town will be liable for damages accruing to him from an accident caused by any defect or obstruction in that portion of the highway over which he thus necessarily passes.” 5 Thompson, Commentaries on Law of Negligence, § 6011.
See, also, O’Laughlin v. Dubuque, 42 Iowa 539; Kelley v. Fond du Lac, 31 Wis. 179; South Omaha v. Meyers, 3 Neb. (Unof.) 699, 92 N. W. 743; Savage v. Bangor, 40 Me. 176, 63 Am. Dec. 658; Rea v. Sioux City, 127 Iowa 615, 103 N. W. 949.
A similar question as to the use of a park strip was involved in Fockler v. Kansas City, 94 Mo. App. 464, 68 S. W. 363. A pile of stone had been placed upon the space left between the curbing of the street and the sidewalk, and the plaintiff in the case was injured thereby. The contention was made that the space between the sidewalk and the curbing was not intended for the use of pedestrians, and that the city therefore owed the plaintiff no duty to keep it free from dangerous obstructions. The court held that it was the duty of the city to keep all parts of the streets in reasonably safe condition for travel, and it clearly and very properly distinguished between obstructions such as trees and ornamental growth within the park space and others of an entirely different class. The court stated that such obstructions as were intended to be placed in the park space should be anticipated by the traveler, and that the city owed no duty to keep the space clear of such; but that it was otherwise with obstructions that were not intended to be placed there as a part of the plan of street improvement and maintenance. We think the reasoning was sound and .sensible, and that it should be
It is contended that the court erred in refusing the appellant’s offer to prove by the witness C. E. Bingham the substance of a conversation the witness had with the respondent A. J. Larsen, the husband of the injured woman. Bingham was mayor of the city at the time, and the offer stated that the conversation was with reference to a proposed compromise settlement between the respondents and the city for the injuries received by Mrs. Larsen. The offer was properly refused. It expressly appeared that the conversation related to an effort to compromise the matters involved in the suit, and under well-known rules it was improper, over objection, to disclose such a conversation to the jury.
Complaint is made that the court permitted respondent A. J. Larsen to testify concerning the amount of travel upon Murdock street subsequent to the time of the accident. This occurred during redirect examination and simply covered ground which was opened up by appellant’s cross-examination of the same witness. We therefore think it was not error to overrule the objection.
It is complained that the court permitted the witnesses Hammer and Lefavor to testify of complaints made by respondents to the city council concerning the street obstructions at this mill, without fixing the time when such complaints were made. We think it clearly appeared that the complaints were made well within the time of practically two years during which the obstructed condition was continued prior to the accident to Mrs. Larsen. The only purpose of showing that complaint was made was to bring actual notice to the city, and the time was sufficiently shown for that purpose.
Appellant sought to show by the witness Mallott that about four years before the accident to Mrs. Larsen, her husband, the respondent A. J. Larsen, had made statements to the witness concerning the physical condition of Mrs. Larsen, to the
Errors are assigned upon the court’s refusal to give certain requested instructions. A reading of the entire charge of the court convinces us that it was very full and comprehensive, and correctly covered every point in the case within our views of the law as above expressed. There was no prejudicial error in the instructions given or in the refusal to instruct in the form requested.
It is assigned that the damages returned by the jury are excessive, and appear to have been given under the influence of passion and prejudice. We think, under all the evidence, that neither the frial court nor this court should assume to say that the amount is excessive. There was evidence to the effect that Mrs. Larsen was, before her injuries, a very strong woman; that she was injured in the hip, somewhat in the nature of a dislocation; that the muscles and nerves of the back were also affected, and that she was lame and unable at times to move one leg forward. There was evidence of considerable suffering as the result of the injuries, and that she has been unable to pursue her work with her former success because thereof. Under such circumstances we think the court should not say that a verdict for $1,650 was prompted by passion and prejudice.
We find no reversible error in the record, and the judgment is affirmed.
Fullerton, Crow, Mount, Rudkin, Dunbar, and Root, JJ., concur.