11 Wash. 24 | Wash. | 1895
The opinion of the court was delivered by
Avenue B is a street running north and south in the city of Snohomish (a municipal corporation of the third class), and is intersected at right angles by First street, which is the principal thoroughfare of the city. About seven o’clock in the evening of December 10,1892, the respondent, while walking north on the sidewalk on the east side of the avenue, fell into an excavation, whereby he sustained serious personal injuries. This excavation was on the west side of a brick building fronting on First street and extending north on the east line of avenue B, and extended about three feet into the sidewalk for a distance of thirty-five feet north and south. The respondent, claiming that the city negligently left this excavation open and un
It denied all other allegations of the complaint, and, as an affirmative defense, averred that at the place where the excavation was made Wells & Davis, contractors, were erecting a two-story brick building for J. Otten, the owner of the abutting property, and if any excavation was made in said street it was made by said contractors, their servants or employes, without the consent or knowledge of the city, and that the defendant had no notice that any such excavation was made, or left unguarded; and that if the plaintiff sustained any injury it was caused solely by his own negligence, and not by the negligence of the defendant. A verdict for $13,625 was returned by the jury against the city, and a judgment was subsequently entered- in accordance therewith. At the close of the plaintiff’s evidence the defendant moved for a non-suit, on the ground that the plaintiff had not made a sufficient case for the jury. The motion was denied and the defendant excepted, and this ruling of the court is assigned as error.
It is urged on behalf of the appellant that the motion for non-suit should have been granted for the following reasons:
“1. Non-liability of the defendant.
“2. Failure of the plaintiff to present his claim and demand payment thereof before beginning this action.
“ 3. It does not appear that the defendant had notice of the defect in the highway complained of.
“4. That it appears from plaintiff’s case that he was guilty of contributory negligence.”
As to the liability of the city of Snohomish for in
It is urged by counsel for the appellant that the damages claimed in this action are for neglect of governmental duty, and for that reason, as well as for the further reason that there is no express statute in this state making cities of the third class liable for damages resulting from failure to keep their streets in repair, this action cannot be maintained. It must be conceded that there is no legislative enactment declaring these cities liable for such negligence as is alleged in the complaint in this action; and it may also be conceded that the appellant city cannot legally be made to respond in damages for negligence in the discharge of purely governmental duties. But it does not necessarily follow from these propositions that the city is exempt from liability in the present case.
In the first place, we are of the opinion that the laying out, repairing and controlling of streets by a chartered municipal corporation does not call forth the exercise of strictly governmental functions. In the performance of such duties, however imposed, the municipality acts primarily for the benefit of the inhabitants of the particular locality. In preserving the peace, caring for the poor, preventing the destruction of property by fire, and preserving the public health, it assumes duties which are said to be in their nature solely governmental (Jones on Negligence of Municipal Corporations, ch. IV), and for the non-
In the second place, we think that where, as here, a city has exclusive control and management of its streets, with power to raise money for their construction and repair, a duty (when not expressly imposed by charter) arises to the public from the character of the powers granted to keep its streets in a reasonably safe condition for use in the ordinary modes of travel, and that it is liable to respond in damages to those injured by a neglect to perform such duty. There is undoubtedly a want of harmony among the decisions of the courts upon this question, but we believe the decided weight of authority, as well as sound reason, is in favor of the view above expressed. Denver v. Dunsmore, supra; Shearman & Redfield, Negligence (4th ed.), § 289; 2 Dillon, Mun. Corp. (4th ed.), § 1017; Elliott, Roads and Streets, p. 446; Jones, Neg. Mun. Corp. 88, et seq.; Cooley, Torts (2d ed.), 746; Weightman v. Washington, 1 Black, 39; Barnes v. District of Columbia, 91 U. S. 540; District of Columbia v. Woodbury, 136 U. S. 450 (10 Sup. Ct. 990).
But this question is not a new one in this state. It was before the territorial supreme court in Hutchinson v. Olympia, 2 Wash. T. 314 (5 Pac. 606), and was there decided adversely to the contention of the appellant, and was referred to approvingly in Morgan v. Morley, 1 Wash. 464 (25 Pac. 333).
The statute provides f Gen. Stat., §638) that—
“All demands against such city shall be presented to and audited by the city council, in accordance with
A presentation of the claim sued upon to the city council was not alleged or proved in this instance, but we think it was not such a demand as was contemplated by the legislature in enacting the section of the statute above quoted. The demands there spoken of are those arising out of the ordinary transactions of the city, and which may be examined and compared with the vouchers and “audited,” and not those resulting from violations of municipal- duties. This construction has virtually been given to statutes even more mandatory in terms than ours by the highest courts of several of the states. See Kelley v. Madison, 43 Wis. 638 (28 Am. Rep. 576); Bradley v. Eau Claire, 56 Wis. 168 (14 N. W. 10); Jung v. Stevens Point, 74 Wis. 547 (43 N. W. 513); Lay v. Adrian, 75 Mich. 438 (42 N. W. 959); Warren v. Davis, 43 Ohio St. 447 (3 N. E. 401); Sheridan v. Salem, 14 Ore. 328 (12 Pac. 925); Pomfrey v. Saratoga Springs, 104 N.Y. 459 (11 N. E. 43).
We readily agree with the learned counsel for the appellant in the assertion that the city cannot be held guilty of negligence if it had no notice of the existence of the excavation in question. But we are unable to say that no notice had been shown by the plaintiff when he closed his case. It is not necessary in such cases that actual notice be shown. Constructive notice is sufficient. If this dangerous hole, which, according to the statement in appellant’s brief, was but eleven feet and five inches from the north line of First street, was in existence for such a length of time that the city
And it was incumbent upon them to see that the excavation was so guarded as to protect travelers upon the street from being injured by it. That such was the duty of the city is not disputed, but it is earnestly
Neither do we think that the court erred in submitting the question of contributory negligence on the part of the plaintiff to the jury. The evidence discloses that, at the time of the accident, there were a couple of boards extending from the side of the building, at a point near the middle of the excavation, diagonally across the sidewalk in a southwesterly direction, constituting what the witnesses denominated a “ sheer guard.” These boards were nailed to a post at their southwestern extremity, but it does not exactly appear how they were supported at the end next to the building. They were about two and one-half feet above the sidewalk. This “ sheer ” left about one-half of the length of the excavation entirely unprotected. The respondent, as he says, did not see it until he almost got against it, as it was then quite dark. When he discovered it he stepped around to the right and fell into the excavation, which he did not see, and of which he had no knowledge. He knew that a large excavation was dug for the purpose of a basement, and had several times seen the building while in course of construction; but that was the extent of his knowledge of the situation. Whether there was sufficient light upon the street to have enabled him to see where he
The appellant claims that the fact that the respondent did not retrace his steps and leave the sidewalk when he saw the fence before him, is conclusive evidence of negligence on his part. But we do not think so. ■ Whether an ordinarily prudent and cautious man would, under similar circumstances, have turned to the right or to the left, was a question for the jury, and not the court, to determine.
The respondent was not able to go to the court house at the time of the trial, and his testimony was taken at his residence in the presence of the judge, jury and counsel for the respective parties; and the appellant now claims that the proceeding was contrary to law, and that the judgment ought to be reversed on account thereof. The proceeding was no doubt irregular, but it does not appear that it was objected to at the time, nor can we see that the appellant was in anywise injured or prejudiced thereby. Error without injury is not a sufficient ground of reversal.
It is objected that the court committed error in giving certain instructions to the jury, and also in refusing to give certain instructions requested by appellant. The instructions given are voluminous, and a careful examination of them satisfies us that the law governing the case was fairly presented to the jury. Taken together, they are as favorable to the appellant as the facts and the law would warrant.
The appellant also claims that the court erred in permitting a witness to give his opinion as to whether the respondent was badly hurt by his fall, but we think the objection is untenable. And, besides, the effect of the accident upon the respondent was fully shown by other evidence, to which no objection was interposed.
Lastly, it is contended that the verdict ($13,625) is excessive, and, for that reason, should be set aside and a new trial ordered. The code (Code Proc., § 400) provides that a new trial may be granted for excessive damages, appearing to have been given under the influence of passion or prejudice. But, in this instance, we perceive nothing indicating in the slightest degree that the jury were influenced by any improper motive whatever, in assessing plaintiff’s damages. Nor are we able to say that the damages awarded are more than a just compensation for the injuries sustained by the respondent. That those injuries were of a very serious character will appear from the following clear and concise statement contained in the brief of counsel for the appellant: “He received a scalp wound, and an injury to the small of the back, and probably a resultant injury to the kidneys. The lower extremities are partially paralyzed, and it is only by the use of crutches he is able to walk about the house. He suffers much pain, sleeps but little, and will never be able to do work ás a turner and millwright, or any other kind of labor, and will probably not live longer than a year. Prior to this injury he was a healthy man.” In view of these facts, we are not disposed to disturb the verdict on the ground of excessive damages.
We find no substantial error in the record, and the judgment is therefore affirmed.
Dunbar and Scott, JJ., concur.
Hoyt, O. J., dissents.