50 Wash. 670 | Wash. | 1908
This is an action to recover damages against the city of Centralia, for personal injuries received by the plaintiff from falling into a manhole, in one of the streets' of said city. A sewer had been recently constructed on King Street, which extends from north to south and crosses Walnut street, which extends east and west. The manhole was located in the intersection of the two streets, and to the north of the manhole, along King street, the sewer had been backfilled. The manhole was a short distance to the southeast of the intersection of the central lines of the streets. A pile of earth and gravel, which had been thrown up from the manhole, was placed on the north, west, and southwest' of the hole, surrounding it in the form of a semicircle. It was not far from the edge of the hole and was of sufficient height to form a barrier against ordinary stumbling into the hole by pedestrians or teams.
The evidence conflicts as to the situation on the easterly side. The defense claims that three large sections of sewer pipe stood on end in the form of a semicircle, forming a barrier, but other testimony was to the effect that these stood so
The plaintiff came from a house at the northeast corner of King and Walnut streets, where she had been calling. It was in the evening and was very dark. She lived upon the south side of Walnut street, near the middle of the block, adjoining King street on the west. She had observed this construction work going on, and had seen the manhole at that place by daylight. Her observation had been merely casual as she passed, and in a general way she knew the location. As she went from her home to call at the house of her neighbor, she passed to the west and north of the manhole, and crossed over the newly filled sewer. Recent rains had made the newly filled places muddy and slippery and disagreeable for crossing, particularly in the darkness. The principal travel there was to the north and west of the hole; but that part of the street intersection to the easterly was open and free for travel. When the plaintiff came out of her neighbor’s house to return home, she testified that, by reason of the disagreeable crossing to the north and west, as aforesaid, she decided to pass to the east and south of the manhole, and that she supposed the signal light indicated the place of the hole itself; that owing to its distance away from the hole, she was misled, and also owing to the further fact that she encountered no barrier or obstruction of any kind, she walked into the manhole and sustained serious injuries. The defense was that she was guilty of contributory negligence. She recovered a verdict and judgment for $5,000, and the city has appealed.
Appellant relies much upon the case of Hobert v. Seattler 32 Wash. 330, 73 Pac. 383, as an authority in its favor here. To our minds the facts are very dissimilar. Mrs. Hobert knew the ditch was in the street, that it was dangerous to cross it without a light, and that there was no way to proceed upon that street at that place except by crossing the dangerous ditch. She therefore knowingly and negligently took all the chances and clearly contributed thereby to her injury. In the case at bar, however, the respondent, while knowing that the dangerous place was in the street, knew also that there were ways of crossing the street intersection without encountering the danger. It was for the jury to say whether she exercised the ordinary care of a prudent person in attempting to pursue in the darkness one of those ways, and whether but for the .negligence of appellant she could have escaped injury.
It is next insisted that the court erred in overruling appellant’s motion for judgment on the special findings of the jury notwithstanding the general verdict. It is argued that the special interrogatories and the answers thereto are so similar to those in Hobert v. Seattle, supra, as to be controlling here. We have already pointed out the distinction between that case and this one, and we find no necessary inconsistency between the special and general verdicts. It is claimed that the answer to the following interrogatory was not supported by the evidence: “Question: Had plaintiff walked around this manhole three or four times previous to the injury in the daytime, and did she know, or by the exercise of ordinary care and observation should she have known, the location and surroundings of said manhole? Answer: No.” It cannot be said that the evidence showed that respondent had “walked around” the manhole three or four times, and having reference to the circumstances and surroundings, it cannot be said that the remainder of the interrogatory was improperly answered. The answer is consistent with the general verdict, and we find the motion of appellant for judgment upon the special verdict was properly denied.
We do not find the objections to the instructions well taken. We think the jury were fully and fairly instructed upon the law of the case, and we find no error in that particular. The motion for new trial was properly denied, and the judgment is affirmed.
Rudkin, Crow, Dunbar, and Root, JJ., concur.