Billings v. City of Snohomish

• Decision Date: 23 November 1908
• Citation: 98 P. 107,51 Wash. 135
• Court: Washington Supreme Court
• Parties: BILLINGS et al. v. CITY OF SNOHOMISH.

98 P. 107

51 Wash. 135

BILLINGS et al. v. CITY OF SNOHOMISH.

Supreme Court of Washington

November 23, 1908

Appeal from Superior Court, Snohomish County; W. W. Black, Judge.

Action by Ovid E. Billings and another against the City of Snohomish, a municipal corporation. Judgment for plaintiffs for $3,500, and defendant appeals. Reversed and remanded.

M. J McGuinness and Robert McMurchie, for appellant.

J. Y Kennedy and Hathaway & Alston, for respondents.

FULLERTON, J.

This is an appeal by the city of Snohomish from a judgment entered against it in an action brought by the respondents, who are husband and wife, to recover for personal injuries received by the wife from a fall on the sidewalk of the appellant city. The first three assignments of error challenge the sufficiency of the evidence to justify the verdict. The injured respondent tripped over a board in the walk, which was raised up immediately in front of her by being stepped upon at the other end by the person with whom she was walking. It is contended that there was no evidence tending to show that the walk at the place of the accident was not reasonably safe for public travel, nor was there any evidence tending to show that the city had notice, either actual or constructive, of the actual condition of the walk. That the walk was so far defective as to render it unsafe for public travel at the place of the accident, it seems to us, the evidence leaves no doubt. The walk was originally constructed by laying three stringers parallel with the course of the street and nailing boards crosswise thereon. At the time of the accident, the stringer next the property line had entirely rotted away, and the one next the street had so far decayed as to allow one of the boards forming the walk to sink, when stepped upon, below its original level. The effect was that the boards, when stepped upon at one end, would raise at the other, thus tending to trip any one who might be passing at that time. Manifestly such a condition renders a walk unsafe.

Whether the city had knowledge of the defect, or could have learned of it by the exercise of reasonable diligence, the evidence is not so clear; but we think it sufficient to sustain the finding of the jury that the city did have such knowledge. The evidence of the respondents, in addition to showing the condition of the stringers as above recited, tended further to show: That the walk had been down something over five years; that the ends of the boards next the property line had rotted away for a foot or more, and for some distance further had decayed on the under side, until only a shell remained; that the stringer next the street had decayed on the inner side, leaving a thin shell to support the boards, and this shell had been crushed down beneath the board over which the respondent received her injury; that the nails that originally held the board to the stringers had pulled out in part, leaving the walk in a loose condition, so that it rattled when walked upon; and that it had been in this condition for some months before the accident. This, if believed by the jury, warranted a finding that the city had constructive notice of the defect. The city officers must exercise reasonable diligence in the care of the city's walks. They must take notice that constant use will gradually wear out a walk, that nails will pull and supports decay, and that at best the life of a wooden sidewalk is limited to but a few years. It is not enough that they may find that the surface of the walk appears sound. The walk as an entirety must be examined and kept in repair, if the city is to escape the charge of negligence. There was therefore no error on the part of the court in refusing to sustain the several challenges made to the sufficiency of the evidence.

On cross-examination of certain of the city's witnesses, it developed that a new sidewalk had been constructed at the site of the accident; but whether by the city or the abutting property owner was not shown. At the...