93 Wash. 167 | Wash. | 1916
Appellant, claiming to have received an injury caused by a defective sidewalk, sued the city. The cause was submitted to a jury, and verdict returned for the city, upon which judgment was entered and this appeal taken.
The place of the injury was on Alki avenue near the municipal bathing beach. At this point Alki avenue is about fifteen feet above the beach, and is reached by a flight of stairs. Appellant, coming up the stairs from the beach to the avenue, claims that, as she reached the sidewalk on the avenue, she stepped upon a loose plank which flew up, catching her foot, and resulting in a sprained ankle.
The first error alleged is in the exclusion of evidence. Appellant sought to show both actual and constructive notice. In order to show actual notice, appellant offered to prove that, four days before her accident, a lady, in stepping from the sidewalk to the head of the stairs at the same point, noticed the loose plank and telephoned a person in charge of the municipal bath house of the condition of the walk. The offer was rejected. The ruling was correct. The streets of Seattle are in charge of the board of public works. The bathing beach and bath house are under the supervision of the board
The nest contention is that the court erred in instructing the jury that,
“Under the law nobody can come into court pleading carelessness of the opposite party, if the carelessness of the complaining party is the contributory cause of the injury, and if you think from any evidence in this case that the plaintiff was negligent herself, and her own carelessness in walking, in stepping on this sidewalk was the contributory cause of the accident without which it could not have occurred, of course, she could not recover.”
It is argued there was no evidence upon which to submit the question of contributory negligence to the jury. The city pleaded contributory negligence as a defense, and being so pleaded it was an issue in the case to be determined by the jury as they believed the fact, either from affirmative proof on the part of the city, or from the evidence of appellant herself in detailing the circumstances which she claimed resulted in her injury. Being an issue of fact, it was for the jury to determine under proper instructions. The question was fairly submitted to the jury in this and other parts of the charge not quoted.
The instruction is further criticized because it is said it assumes contributory negligence. We do not so read it. The language of the instruction is, “If you think from any evidence in this case that the plaintiff was negligent herself,” etc. This was a submission of the fact to the jury, and not an assumption by the court.
“In a remote locality, a suburb of the city, where the highway is seldom or infrequently used, the same degree of care would not be expected, as in a locality where crowds assemble and where travel is frequent.”
This is only part of an instruction in which the court charged the jury that the degree of care imposed by law on the city in maintaining its streets was in proportion to the danger to be apprehended from the use of the streets, and that in determining such question the circumstances and surroundings with regard to the place of accident should be taken into consideration. Reading this instruction as a whole, we see no fault in it.
The last error charged is that the court refused to exclude the jury when appellant was making her offer of proof outlined in the first claim of error. We see no, error here. It could not be prejudicial to appellant to have the jury hear an offer of testimony she regarded as valuable to her recovery, even though such testimony was excluded. The ruling thereon was one of law and not one of fact, and it is difficult to see how an offer of testimony upon a favorable fact getting before the jury, even though followed by an admonition to disregard it, could prejudice the party offering to prove it.
The judgment is affirmed.
Holcomb, Main, Parkeb, and Battsman, JJ., concur
