85 Wash. 491 | Wash. | 1915
The purpose of this action was to recover damages for personal injuries alleged to be due to the negligence of the defendant in failing to keep one of its highways in proper repair. The defendant answered the complaint by certain admissions and denials, and pleaded affirmatively that the place where the accident occurred was not in a street or highway which the county was under obligations to maintain or keep in repair; and that the plaintiff’s contributory negligence was the cause of the injury. The affirmative matter in the answer was denied by reply. The cause in due time came on for trial before the court and a jury. At the conclusion of the plaintiff’s case in chief, the defendant interposed a motion for a nonsuit, which was granted. Motion for a new trial being made and overruled, a judgment was entered dismissing the action. The plaintiff appeals.
The facts, briefly stated, are these: On September 12, 1907, the Sound Trustee Company, the then owner of a cer
Along the front of the plat is a street, indicated as Beach Drive. The length of this street is approximately 2,000 feet. It extends from a point a short distance north of the dock, south along the shore just above what is known as the beach. The south end of this drive does not connect with any other street or highway. It ends in what is called by some of the witnesses as a “dead end” or “nowhere.” The owner of the. property as platted gi'aded Beach Drive and a street at the rear of the plat, and certain streets extending into the plat from these two streets. On Beach Drive a roadway was graded twelve or fifteen feet wide the entire length of the street. The east side of this graded roadway was near the property line on that side of the street. In grading the roadway, the bank was cut down in order to make a level surface for traffic. The surface of the lots adjacent to the street upon the upper side was six or eight feet in places above the level of the street. The grading of the streets mentioned was begun by the owner in June, prior to the presentation of the plat to the board of county commissioners for its approval, and was continued until the month of February, 1913, when the work seems to have been completed.
To the south of Redondo, at a distance of approximately one-half or three-quarters of a mile, was a settlement known as Buenna, but at this place there was no post office. The people from this settlement also used Beach Drive in going to and from Redondo. In order to reach Beach Drive, they came over a roadway across private property.
The use of Beach Drive in the manner mentioned was continued from the time it was opened until the 31st day of December, 1912. On this day there was an extreme high tide at this point on the Sound, and a severe storm, which washed away certain portions of the roadway of Beach Drive. Thereafter vehicles could not pass along the street, but it was used by the people of the vicinity when walking to and from Redondo. Along the roadway there were places where it had been washed away, except a strip of two or three feet on the east side thereof adjacent to the bank mentioned.
On July 30, 1913, the plaintiff and her married daughter left their home, which was about a quarter of a mile south of Redondo and on Beach Drive, for the purpose of going to the post office and store. They traversed the roadway as usual. They left the store to return home at about 9 o’clock that evening. It was then dark. They traveled along the footpath on the east side of the roadway. The daughter preceded the mother, having, as both the mother and daughter testified, the difficulties of the road in mind, and a desire to avoid them. The point where the roadway was most nearly washed away was in front of a tent erected upon an adjacent lot. This fact was known to the appellant and her daughter. The washout at this place was somewhat “V” shaped, across the apex of which, or near the lot line, was placed a plank
At the time the plat was approved by the county commissioners, there were about three families living at Redondo; at the time of the trial there were approximately twelve. This action was brought, as already stated, for the purpose of recovering for injuries which the appellants claimed to have sustained by reason of the fall mentioned. Redondo, or Redondo Beach, was an unincorporated village.
The first question is whether Beach Drive had become a highway in such a sense that the respondent county was under the duty of keeping it in repair. Rem. & Bal. Code, § 8787 (P. C. 115 § 147), imposes upon the county auditor the duty of keeping a record of all plats, and where platted property is not situated within any incorporated town or village, before such plat can be filed in his office, it must be approved by the board of county commissioners of the county. By Rem. & Bal. Code, § 5575 (P. C. 441 § 117), the board of county commissioners have general supervision over the roads in the county, and a duty is imposed upon such board of opening for traffic such roads as are necessary for public convenience. The fact that the board of county commis
The ultimate question is whether the board of county commissioners, in permitting the street to be graded by a private party, did not thereby impliedly invite the public to use the same. It can hardly be said that the commissioners are not presumed to know the local conditions of the property platted at the time of approving the plat. After the plat was approved by them, the streets and avenues therein dedicated to public use became highways in a certain sense. Some of the authorities speak of such streets as “paper” streets. After the approval of the plat, the streets and avenues therein designated came under the jurisdiction of the board of county commissioners. Whether they would be improved or not depended upon the action of that board. The fact that the
Upon the trial, evidence was offered that the Sound Trustee Company, the platter of the property, had appeared before the commissioners and was granted a franchise to put water mains in all the streets of the plat, and that subsequently a water system was installed. This evidence was rejected. While this ruling may not have been sufficiently vital to justify a reversal of the case for that reason alone, we think the testimony was admissible, at least as a circumstance tending to show the relation of the board of county commissioners to the streets and avenues in the plat. The evidence introduced on behalf of the appellant, and that is all we have before us upon this hearing, if true, was sufficient to carry the question to the jury as to whether or not the county had impliedly invited the public to use Beach Drive as a highway.
The next question is whether the appellant was guilty of contributory negligence as a matter of law. The evidence shows that she knew the condition of Beach Drive, and of the particular hole into which she fell, for some months prior to the accident; that she had frequently traveled over the street; that she had a lantern at home, but did not take it with her upon this particular occasion; that at the time of the accident . she was advised by her daughter and knew they were
The law does not in all cases hold a person injured by a defect in a highway guilty of contributory negligence merely because such person may have had previous knowledge of the defect, but generally treats the matter of knowledge as a fact or circumstance bearing upon the question of contributory negligence to be submitted to the jury along with all the facts and circumstances surrounding the accident, leaving it for them to determine whether, under the facts shown, the injured person- was or was not guilty of contributory negligence. Blankenship v. King County, 68 Wash. 84, 122 Pac. 616, 40 L. R. A. (N. S.) 182. But in this case, as already mentioned, while the plaintiff had knowledge of the hole, it was not shown that she had knowledge of the particular defect which caused the ground to break off under her feet and precipitate her into the washout. Had she stepped over into the hole without the dirt giving way, a different question would be presented. Under the facts as shown bjr the evidence in the record, we cannot conclude that the appellant was guilty of contributory negligence as a matter of law, but the question is one for the jury.
The judgment will be reversed, and the cause remanded with direction to the superior court to grant a new trial.
Morris, C. J., Ellis, Crow, and Fullerton, JJ., concur.