53 Wash. 490 | Wash. | 1909
The complaint alleges that the defendant, King county, maintains, among other roads and highways, a road and highway passing along through the town of Falls City and along a river bank, which road has been in existence for many years previous to the SOth day of November, 1907, the date of the accident which is the subject of this suit; that previous to said day, it had at all times been maintained in a safe condition for the traveling public for teams, etc.; that the plaintiff was familiar with said road as it had existed
It is contended by the appellant that there is no substantial testimony to the effect that the respondent was on the highway at the time the accident occurred. It is also contended that it is immaterial whether or not respondent was on the highway when he drove into the washout, as the court took that question from the jury by giving the following instruction :
“Should you further find that the Avagon went into said ditch beyond and outside of the road line, but that the place Avhere it went in was not marked off from the county road and was theretofore and then used as a part of the county road, and that its general condition was a smooth surface and a continuance of the county road and that the place where the injury occurred was close to the line of the county road, and that persons using ordinary care would be liable to drive off of the road and into the land adjoining, if you find these things, then I instruct you that it makes no difference whether the accident occurred on the roadway proper or near it;”
because, as is said by the appellant, this eliminates from the consideration of the jury the question of whether the respondent was actually on the roadbed at the time the accident occurred. It is claimed that this instruction is in vio
“The general rule appears to be that the duty to keep in repair extends only to the ‘traveled path’ or portion of the way in actual use, provided it is wide enough to be safe. Necessity and expediency, without anything more, would probably justify such a rule in the case of country roads.”
The cases cited by that author to sustain the text, and those cited by the appellant, we have examined, and it appears to us that neither the text cited nor the authorities referred to are in point. It is, no doubt, true that the general rule is that the duty of the county or the city is only to keep in repair that portion of the way in actual use, provided it is wide enough to be safe. But there is an element in the instruction here that is not discussed or decided in the cases cited by appellant, and we have been unable to find any authority in text books or cases where it is held that, where a county uses and keeps in repair a certain territory as a road for travel, and has invited the public to use it as a road, it can escape liability for not mending or guarding the danger suddenly created across the highway, simply because the pitfall or danger was not within the limits of the road to which the county held the legal title. That is exactly the proposition involved in this instruction; for it will be noted that the court incorporated the qualification that the location outside of the road line was theretofore and then used as a part of the county road. This doctrine is based, it seems to us, on simple justice and fair play, on the theory that the county ought to be estopped from denying responsibility where it had issued an invitation to the public to travel on the location adjacent to a county road as a part of the road, and where the road was in such position topographically as to mislead the public, there being no defined boundary between the road and that territory which the public had been invited to travel upon as a part of the road. This doctrine of
“It is first argued by the appellant that the city was not required to construct these bicycle paths ; that it was optional with the city to do so or not, as it chose; and that, therefore, the liability arising from the mandatory duty is not imposed upon the appellant. Conceding this to be the rule, it does not apply in this case, because it is alleged that the path was constructed. The city having exercised its option to construct the path, the same rules must apply to the method and care in the construction and maintenance as applies where there is a duty imposed by law, viz., to so construct and maintain the path or street or walk that the same may be reasonably safe for the ordinary use for which it was intended
citing many cases to sustain the text.
Appellant refers the court to 15 Am. & Eng. Ency. Law (2d ed.), p. 455 (cited in appellant’s brief as p. 451), where it is said:
“It is well settled that a municipality is under no obligation to fence its road or to put up barriers simply to prevent travelers so straying from the highway, and that, consequently, if a traveler so strays on to adjoining property and there meets with an accident at some distance from the highway, the municipality is not liable, though the barrier would have prevented such straying.”
The author continued, however, in the next paragraph to say:
“If there is a dangerous place, however, such as a declivity or excavation, so close to the highway or to the traveled part thereof as to render the latter unsafe for travelers in the absence of a railing or barrier, the want of such railing or barrier constitutes a defect in the highway itself, for injuries from which the municipality is liable. But the danger which requires a barrier must be of an unusual character,*495 such as a bridge, declivity, excavation, steep bank, or deep water, and a space adjoining a road or street may be left without a barrier though it be rough and entirely unsuitable for travel.”
The text falls squarely within the facts in this case, the testimony showing that the excavation or washout into which the plaintiff fell was very dangerous and in very close proximity to the street, conceding that it was not in the street, and of such an unusual character that it should have been barred from travel to the unsuspecting and unnotified. The same authority says that the question of proximity is to be considered with reference to whether the highway was traveled or worked, rather than as laid out.
It was held in Willey v. Ellsworth, 64 Me. 57, that ways may be established by proof of public user or by a laying out by the constituted authorities; that the limits of the way are determined by user or by location; that however a way is shown to exist, it is one with limits defined by user or location.
In Moran v. Inhabitants of Palmer, 162 Mass. 196, 38 N. E. 442, it was held that an instruction, to the effect that the side of the street, although never actually wrought as a sidewalk, when used and permitted and intended by the town to be used by persons on foot was a part of the traveled highway, was correct, and that a side of a street may be in such form and so used with the knowledge and acquiescence of the town as to be a portion of the traveled part of the way which the town is bound to keep in repair, even though no work has been done upon it to fit it for the use of pedestrians; citing Lowe v. Clinton, 136 Mass. 24, and Aston v. Newton, 134 Mass. 507, 45 Am. Rep. 347.
In Wakeham v. St. Clair, 91 Mich. 15, 51 N. W. 696, where in an action against a town for personal injuries occasioned by a defective highway, the evidence showed that it was along the bank of a river; that to protect the highway, the town had constructed a breakwater by laying a line of
In Aston v. Newton, supra, it was held that if, between the sidewalk of a street in a city and that portion of the street wrought for a carriage, there is a grassed space, over which a footpath has been worn by use by persons having occasion to enter another street abutting on this street but not crossing it, or to come in the opposite direction, the city is hable to a person injured by a defect in such path, if the path was known to and recognized by the city as a part of the wrought line of travel, in the absence of any path or other provision made by the city for crossing the street at or near the locality in question, or of any barrier or other warning to indicate that the path as actually used was unsafe or unsuitable. To the same effect is Watson v. Proprietors of Lisbon Bridge, 14 Me. 201, 31 Am. Dec. 49, and Saltmarsh v. Bow, 56 N. H. 428, where it was held that, if a town suffers the traveled part of a highway to become widened, so as to hold out to the traveler that the whole width is equally suitable for the public travel, it is answerable for damages grow
It is the claim of the respondent, and there is sufficient testimony to support that contention, if the jury believed it, that all the land between the sidewalk on the south part of the street and the telephone poles on the river bank, had been recognized and used as the public road, and that work had been done on all parts of it; so that, in the absence of error in the instructions, the determination of the questions of fact by the jury is conclusive.
It is also contended that the court erred in giving the following instruction:
“It is the duty of the county, such as the county of King, to maintain its public highways and roads in a reasonably safe condition for public travel. That duty must be exercised by the officials of the county having charge of the public highways, and failure to exercise that duty and failure to maintain its highways in a reasonably safe condition for public travel, such as might be reasonably expected by those who travel over these highways, would constitute negligence on the part of the county.”
It is contended that this instruction makes the county an insurer of those who travel upon the highway, and that there is a difference between using reasonable diligence in maintaining a highway in a reasonably safe condition for public travel, and maintaining its public highways in a reasonably safe condition for public travel. But the instruction of the court on this particular proposition, when viewed as a whole, is not prejudicial, for after giving that part of the instruction complained of, the court proceeded:
“The county officers are not required under the law to anticipate unforeseen or unusual occurrences, such as an unusual flood or freshet, and such occurrences in the law are considered to be the acts of God, which county officers are not required to guard against. So the first thing for you to determine in this case is whether or not this washout that*498 occurred in the street was one which ordinary prudence would have anticipated and guarded against. If ordinary human prudence and caution would not have anticipated and guarded against it, then it was not negligence on the part of the county that the washout really occurred. Under vnese circumstances, it would be considered an act of God, so that for the washout itself, the county would not be responsible. If, however, it was such an occurrence that human prudence would ordinarily foresee and ordinarily in the exercise of reasonable care would anticipate and guard against, then it would not come under the class of occurrences known as the act of God, and it would be negligence on the part of the county not to have guarded against it or prevented it.”
So that the duty of the county after all was gauged by ordinary human prudence and caution, and the county was not, under such an instruction, made an insurer of the safety of those who travel along its highways. The instruction as a whole was clear and explicit, and covered every point involved in the controversy.
We are unable to discover that the court committed error in giving or refusing instructions, or in the admission or rejection of testimony. While the amount of the verdict in this case from one standpoint seems to be large, yet from the legitimate testimony presenbed in the case, we are not.able to say that it is the duty of this court to interfere with the verdict of the jury in that regard.
The judgment will be affirmed.
Rudkin, C. J., Mount, Crow, and Parker, JJ., concur.