Bell v. City of Spokane

• Decision Date: 23 December 1902
• Citation: 71 P. 31,30 Wash. 508
• Court: Washington Supreme Court
• Parties: BELL v. CITY OF SPOKANE.

71 P. 31

30 Wash. 508

BELL v. CITY OF SPOKANE.

Supreme Court of Washington

December 23, 1902

Appeal from superior court, Spokane county; Frank, H. Rudkin, Judge.

Action by Janet Bell against the city of Spokane. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

A. H Kenyon, for appellant.

E. H Belden, for respondent.

DUNBAR, J.

This is an appeal from a judgment for damages for personal injuries alleged to have been sustained by respondent upon one of the public streets of the city of Spokane.

The first assignment is that the court erred in permitting the witnesses Louis Mondt and L. C. Mondt to testify to repairs made by them and the condition of the sidewalk, where the accident occurred, a considerable time after the occurrence. An examination of the testimony of these witnesses reveals the fact that it was intended to, and did, show the condition of the walk prior to and subsequent to the time of the accident, and was intended to show the means of witnesses' knowledge of the condition of the walk at the time of the accident. It shows that for a long period before the alleged accident, and until a considerable period after the accident, the walk was in the same condition as it was at the time of the accident; that the planks were loose, and the stringers decayed; and that the walk was in a very dilapidated and dangerous condition. This testimony would have been admissible, in any event, to show notice to the city. It is contended by the appellant that notice was admitted, and that the city relied upon having repaired the street; but the record shows that the question of notice was contested, and that testimony tending to show notice was strenuously objected to. In any event, the testimony was cumulative, and, under the state of facts shown by the record, was absolutely harmless, so far as the appellant's interests are concerned. It was decided by this court in Elster v. City of Seattle, 18 Wash 304, 51 P. 394, that the admission of evidence of the condition of a sidewalk after the accident was not prejudicial error, when the evidence was simply cumulative of testimony describing the walk at the time of the accident. In that case it was said: 'The first objection is as to the admission of the testimony of witness Hines, who testified to the condition of the walk a week or ten days after the accident occurred. This, in any event, was only cumulative evidence, and could not have been prejudicial, from the fact that he described the condition of the sidewalk the same as it was described by the other witnesses who saw the walk at or about the time of the accident.' There was no error in admitting the testimony.

The second assignment is that the court erred in admitting in evidence, over the objection of defendant, plaintiff's claim of damages; and the fourth, that the court erred in giving instruction 1, which is as follows: 'If you believe from the evidence that the claim which had been offered in evidence by the plaintiff was in fact filed with the city council within one month after the happening of the alleged accident, and that the same was in fact subscribed by the plaintiff, and that the affidavit of its truth was in fact subscribed and sworn to by said plaintiff after the happening of said alleged accident, and prior to the filing thereof, then I charge you, as a matter of law, that such claim is a sufficient claim, under the provisions of the charter of the city of Spokane, to prevent any waiver of the plaintiff's claim, if any she had.' These two assignments will be considered together. The accident occurred on the 8th of August, 1901. It appeared by the jurat that the claim was sworn to by the respondent on the 7th of August, 1901, and proof was introduced, by the testimony of the respondent and of the notary who administered the oath that the claim was actually sworn to on the 7th day of September, 1901. That is the basis of the objection...