Benson v. City of Seattle

• Decision Date: 20 March 1914
• Citation: 139 P. 501,78 Wash. 541
• Court: Washington Supreme Court
• Parties: BENSON et al. v. CITY OF SEATTLE.

139 P. 501

78 Wash. 541

BENSON et al. v. CITY OF SEATTLE.

Supreme Court of Washington

March 20, 1914

Department 2. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by Mary A. Benson and others against the City of Seattle. From a judgment of dismissal, plaintiffs appeal. Affirmed.

Willett & Oleson, of Seattle, for appellants.

Jas. E Bradford and Howard A. Hanson, both of Seattle, for respondent.

MOUNT J.

In this case the plaintiffs sought to recover damages from the city by reason of an alleged injury received by Mrs. Benson caused by a fall upon a sidewalk in the city of Seattle. The complaint alleges that the injury was sustained because the city negligently maintained the sidewalk in a dangerous condition. The case was tried to the court and a jury. Upon the trial the jury returned a verdict in favor of the defendant. After a motion for new trial was denied and the action dismissed, the plaintiffs appealed.

Numerous errors are assigned and voluminous briefs filed; but the conclusions we have reached upon the points hereinafter noticed are conclusive of the case, and it will therefore be unnecessary to notice other points discussed in the briefs.

According to the allegations of the complaint and the evidence of the plaintiffs, Mrs. Benson was injured by a fall upon a sidewalk in the city of Seattle on January 22, 1912. Her claim for damages was not filed with the city until May 3, 1912, more than three months after the date of the injury. The plaintiffs seek to excuse this delay by an allegation in the complaint to the effect that, as a result of the injuries Mrs. Benson in less than 30 days thereafter became incapacitated to transact business with the usual means at her command, and that this incapacity existed until about April 29th; that within a reasonable time after the incapacity was removed, to wit, on May 3d, the claim was filed.

The plaintiffs' evidence also shows that, at the time of the alleged injury, no bones were broken, and no serious incapacity resulted; that Mrs. Benson did not realize that she had been injured beyond a bruise and the shock from the fall; that no person was with her at the time she fell, and upon returning to her home she went about her usual duties, suffering somewhat from headache and pains; that she told her husband she had fallen upon the sidewalk, but did not relate the circumstances, nor the location of the fall; that, from the time of the injury on January 22d until February 5th, Mrs. Benson was about as usual; that between those dates she made a trip from Seattle to Bellingham on a visit, and returned to her home on January 29, 1912.

The excuse for not filing the claim between January 22d and February 5th was that she did not know or understand that she had sustained injuries sufficient to require compensation from the defendant, and that thereafter she became so incapacitated that she was unable either to make the claim or cause any other person to do so for her; that her husband had not been advised as to where the accident occurred or how it happened, or that the fall was due to any defect in the sidewalk; that, in going from her home to the street car, Mrs. Benson might have passed over the sidewalks on three different streets; that Mr. Benson had no means of finding out where or how the accident happened, except through Mrs. Benson, and neither of them thought there was anything serious until it was too late to get a coherent account of the accident.

The charter of the city of Seattle provides: 'All claims for damages against the city must be presented to the city council and filed with the clerk within thirty days after the time when such damages accrued. * * *' City Charter, art. 4, § 29.

The statute provides: 'Whenever a claim for damages sounding in tort against any city of the first class shall be presented to and filed with the city clerk or other proper officer of such city, in compliance with valid charter provisions of such city, such claim must contain, in addition to the valid requirements of such city charter relating thereto, a statement of the actual residence of such claimant, by street and number, at the date of presenting and filing such claim; and also a statement of the actual residence of such claimant for six months immediately prior to the time such claim for damages accrued.' Rem. & Bal. Code, § 7995.

Section 7996 provides: 'Nothing in this act shall be construed as in any wise modifying, limiting or repealing any...