Blackwell v. City of Seattle

• Decision Date: 17 August 1917
• Docket Number: 14049.
• Citation: 97 Wash. 679,167 P. 53
• Parties: BLACKWELL et al. v. CITY OF SEATTLE.
• Court: Washington Supreme Court

167 P. 53

97 Wash. 679

BLACKWELL et al. v. CITY OF SEATTLE.

No. 14049.

Supreme Court of Washington

August 17, 1917

Department 2. Appeal from Superior Court, King County; John S. Jurey Judge.

Action by Mary C. Blackwell and William Blackwell, her husband against the City of Seattle, a municipal corporation. From a judgment for plaintiffs, defendant appeals. Affirmed.

Hugh M Caldwell and Jas. A. Dougan, both of Seattle, for appellant.

Howard O. Durk and Frank E. Green, both of Seattle, for respondents.

MOUNT J.

This appeal is from a judgment for $500 rendered upon a verdict of a jury against the city of Seattle. It appears that the respondent, Mrs. Blackwell, on the evening of November 13, 1915, at about 9:30 o'clock, while walking along the west side of Rainier avenue, between Orcas and Findley streets, in the city of Seattle, stumbled and fell over a water pipe placed across the sidewalk. She was injured by the fall. Thereafter she filed a claim against the city, and brought an action in her own name. Her husband at that time was residing in the state of Oregon, where he had been for a period of two years. When the case came on for trial, it appeared that Mrs. Blackwell was married, and not legally separated from her husband. After the defendant had moved to dismiss the case, a request was made to amend the complaint by making the husband a party. The case was thereupon continued, and, by stipulation, Mr. Blackwell was made a party plaintiff. The case was afterwards tried to the court and a jury, and resulted in a verdict in favor of the plaintiffs for the amount stated.

The appellant argues that the court erred in denying its motion for a directed verdict, and for judgment notwithstanding the verdict. This argument is based on the fact that the claim for damages against the city was made by the wife alone; the husband not joining therein. The evidence shows, as we have above stated, that at the time Mrs. Blackwell was injured her husband was residing in the state of Oregon, while she was residing in the city of Seattle. Her husband had been residing in the state of Oregon for about 2 years, and did not return to this state until more than 60 days after the injury. In the meantime Mrs. Blackwell made and filed the claim for damages against the city. There was no legal separation, but there was an actual living apart at the time of the injury to Mrs. Blackwell. The question presented here was made in the case of Davis v. Seattle, 37 Wash. 223, 79 P. 784. After some consideration of the question, we there said:

'We fail to see why a wife might not, on behalf of the community, present a claim for damages based upon personal injuries sustained by herself.'

We think that is decisive of the question presented here, especially where the husband is without the state when the injury occurs, and does not return until after the time when the claim is required to be made and filed, as was the case here.

Appellant further argues that the respondent was guilty of contributory negligence, as a matter of law, and for that reason the court should have directed a verdict in favor of appellant. The facts testified to on behalf of the respondents are, in substance, that Mrs. Blackwell at the time of her injury lived upon Rainier avenue, north of Findley street. At that time Rainier avenue was being improved. The sidewalks along the street were intact, and were not closed. Pedestrians were permitted to travel upon the sidewalks. Mrs. Blackwell had not been to her home for about a week. A water pipe, an inch or more in diameter, connecting with a store, had been run across the sidewalk. This pipe was an inch or more above the walk. Mrs. Blackwell and others testified that the place upon the sidewalk where the ater pipe was placed was shaded, so that the pipe was not plainly visible; that while she was walking along the sidewalk hurriedly, not seeing the pipe she caught her foot under it, and was thrown upon the sidewalk and injured. It is argued by the appellant that, if Mrs. Blackwell did not know the water pipe lay across the sidewalk, she should have...