30 Wash. 65 | Wash. | 1902
The opinion of the court was delivered by
This action was brought to recover for personal injuries alleged to have been received by respondent Mary E. Stone, from a fall caused by stepping into a hole in the street. The evidence shows that at the junction of Kilbourne and Bowman avenues, in the city of Seattle, the outer plañir of the cross walk was some inches short, leaving an opening which was at that time four or five inches deep, and of sufficient size for a person to step into it. This accident occurred at night. Hear this opening stood a large electric light pole, from which an electric arc light was suspended in such a manner as to cast the shadow of the pole over said opening. Mrs. Stone, while passing over this cross walk, stepped into the opening while it was thus covered by the shadow, and fell, receiving the injuries for which she seeks to recover.
It appears from the evidence that the opening had existed from the time of the construction of the walk, somé years before. The immediate surroundings had, however, been subsequently changed to the extent of the erection of the electric light pole and the swinging of the light thereon, by which the shadow was cast over the opening as aforesaid. The evidence further shows tjiat the shadow extended entirely over the opening, and for some distance around it, thus presenting an extended dark and shadowy surface, all having the same general appearance as though cast upon the unbroken surface of the street at that point. The respondent, Mrs. Stone, says that, in the absence of the
The only error assigned is that the court erred in granting the motion for a new trial. It is asserted in appellant’s brief that, since the court granted the motion for non-suit, and dismissed the action, the motion for new trial, under our statute, is not the proper practice, and should not have been granted. The above position assumed by counsel is not discussed in the brief, and, since we see no merit in it, we will not discuss it here. The real contention of appellant is that the opening in the crosswalk was not a defect, but was an opening at the inner corner at the point where the crosswalk joins the sidewalk, and as such was a part of the drainage system of the street; that the opening was necessary in order to admit the surface water from the street into the gutter, and to give opportunity to remove any material that might accumulate in the gutter. It is contended that the street was not out of repair, and that the alleged dangerous condition was caused solely from the manner of construction of the sidewalk, crosswalk, and gut
“It seems to the author, however, as he understands the facts, that these are cases where the street was rendered unsafe for travel by the direct act of the city, or its contractor, and that the city would he held liable in those states in which an implied municipal responsibility is recognized for unsafe streets, which, however, is not the case in Michigan.”
Thus it appears to he the view of the author that the doctrine of non-liahility because of a defective plan, while it may he consistent with the doctrine then announced in Michigan, that municipal liability does not exist for any defect in a street, is nevertheless inapplicable in a state where there is an implied liability for unsafe streets. In this view we concur. Since the above Michigan decisions the legislature of that state has passed an act expressly declaring municipal liability for defective streets, and the supreme court of that state has construed the law to include defects in the plan of construction as well as those arising by neglect to repair. Carver v. Detroit & S. Plank Road Co., 61 Mich. 584 (28 N. W. 721) ; Sebert v. Alpena, 78 Mich. 165 (43 N. W. 1098) ; Schrader v. Port Huron, 106 Mich. 173 (63 N. W. 964). Thus, by the construction placed upon the statute, the earlier Michigan decisions have been
The doctrine announced in the New York cases cited by appellant seems to be in conflict with some other decisions in that state. In Clemence v. Auburn, 66 N. Y. 334, the rule is questioned, and the principle of the holding in Seifert v. Brooklyn, 101 N. Y. 136 (4 N. E. 321, 54 Am. Rep. 664), does not seem to be easily reconcilable with the cases cited. But, whatever may now be said to be the rule in New York, the following eases from other jurisdictions clearly refuse to distinguish between the municipal liability because of a defective plan of construction and that which arises from negligence to repair. It is held that actionable negligence is included in the one as much as in the other. Circleville v. Sohn, 59 Ohio St. 285 (52 N. E. 788, 69 Am. St. Rep. 777) ; Hinds v. Marshall, 22 Mo. App. 208; Chicago v. Seben, 165 Ill. 371 (46 N. E. 244, 56 Am. St. Rep. 245) ; Kendall v. Albia, 73 Iowa, 241 (34 N. W. 833) ; Poole v. Jackson, 93 Tenn. 62 (23 S. W. 57) ; Dallas v. Jones, 93 Tex. 38 (53 S. W. 377) ; Gould v. Topeka, 32 Kan. 485 (4 Pac. 822, 49 Am. Rep. 496) ; Blyhl v. Waterville, 57 Minn. 115 (58 N. W. 817, 47 Am. St. Rep. 596).
The last named case modifies the rule by the condition that liability shall exist only when there is no necessity or reason for the defective plan; and Gould v. Topeka, supra, also limits it by the condition that, if the plan is such that different minds may entertain different opinions as to whether it is dangerous or'not, the benefit of the doubt may be given to the board that planned it, and the city held not liable, but that, even in such event, it must appear that the exact matter was under consideration by the governing board, and after due deliberation such plan was expressly
This court .held that the question of negligent construction of the street was one for the jury in White v. Ballard, 19 Wash. 284 (53 Pac. 159), although the original-plan doctrine here under consideration seems not to have been discussed. We think it was a question for the jury in the case at bar whether the city neglected to keep the street in safe condition, and it is immaterial whether the defect arose from the original construction or from subsequent causes. There is also an additional element which calls for its submission to the jury, and that is whether the city was negligent in permitting the electric light to be so placed that the shadow of the pole supporting it concealed the opening in the walk, if such be the fact. The evidence introduced by the respondents certainly tended to establish that fact, and it was for the jury to say what was the fact in that particular. We think the case was erroneously withdrawn from the jury, and that the new trial was prop erly granted.
The judgment is affirmed.
Beavis, C. J., and Fullerton, Anders, Mount, Dunbar and White, JJ., concur.