Apker v. City of Hoquiam

• Decision Date: 06 February 1909
• Citation: 51 Wash. 567,99 P. 746
• Parties: APKER et ux. v. CITY OF HOQUIAM.
• Court: Washington Supreme Court

99 P. 746

51 Wash. 567

APKER et ux. v. CITY OF HOQUIAM.

Supreme Court of Washington

February 6, 1909

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Action by George Apker and wife against the city of Hoquiam. Judgment for plaintiffs, and defendant appeals. Affirmed.

J. B Bridges and S. M. Health, for appellant.

W. H Abel, for respondents.

RUDKIN C.J.

On the evening of September 8, 1907, the plaintiff George Apker accompanied by his wife, daughter, and niece, drove his team along one of the public streets of the city of Hoquiam. By reason of the darkness of the night, the team was driven into a pile of gravel or building material in the street. The horses stumbled, a single-tree broke, the neck yoke became detached from the pole, the horses became unmanageable and dashed across the street, striking a telephone pole on the opposite side, and throwing the occupants of the carriage into the street, causing personal injuries to the plaintiff George Apker for which a recovery was sought in this action. From a judgment in favor of the plaintiffs, the present appeal is prosecuted.

While numerous errors are assigned in the appellant's brief, the only assignments discussed are the following: (1) Error in overruling a motion to make the complaint more definite and certain; (2) error in overruling a demurrer to the complaint; (3) error in admitting testimony as to injuries to the occupants of the carriage, other than the respondent George Apker; (4) error in refusing to permit the appellant to show by cross-examination that the gravel placed in the street the week previous to the accident had been removed prior to the accident; and (5) error in denying a motion for nonsuit on the ground that the respondent George Apker assumed the risk, if any.

1. The record fails to show that the motion to make the complaint more definite and certain was called to the attention of the lower court or was acted upon by that court, and there is, therefore, no ruling before us to review.

2. In support of its demurrer, the appellant contends that the complaint fails to state a cause of action in favor of the respondent Ida Apker, wife of the respondent George Apker and that the complaint fails to state a cause of action in favor of either respondent, because it fails to allege that the appellant had notice or knowledge of the obstruction in the street prior to the accident. In answer to the first contention, it is sufficient to say that section 4827, Ballinger's Ann. Codes & St. (Pierce's Code, § 255), provides that 'husband and wife may join in all causes of action arising from injuries to the person or character of either or both of them, or arising out of any contract in favor of either or both of them.' The third paragraph of the complaint is as follows: 'That for some years past, and at this time, the city of Hoquiam has maintained a public street known as 'I' street, extending in part from Eighth street to Seventh street, the same being at all said times one of the main public thoroughfares in said city of Hoquiam; that on September 8, 1907, and for a considerable period of time, to wit, 30 days prior thereto, said I...