Cady v. City of Seattle

• Decision Date: 22 March 1906
• Citation: 85 P. 19,42 Wash. 402
• Parties: CADY v. CITY OF SEATTLE.
• Court: Washington Supreme Court

85 P. 19

42 Wash. 402

CADY v. CITY OF SEATTLE.

Supreme Court of Washington

March 22, 1906

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by De Witt Cady against the city of Seattle. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Scott Calhoun and Elmer E. Todd, for appellant.

Benson Hall & Higgins, for respondent.

FULLERTON J.

The respondent was injured by being thrown from his wagon while passing over one of the streets of the appellant city, and brought this action to recover therefor. The jury returned a verdict in his favor for $3,000, which was reduced by the trial court to $1,500, and judgment for that sum entered.

The evidence was conflicting concerning the condition of the place where the accident occurred at the time of the accident, the city's knowledge of its condition, and on the question whether or not the danger of traveling on the street where the injury occurred was so apparent that a traveler thereon must be held to have assumed the risk; and as the jury found for the respondent, this court must assume as true that part of the evidence most favorable to his contention. This evidence tended to show that the respondent who was a wood and coal dealer in the city of Seattle, went with one of his drivers on the day of the accident to deliver a load of coal to a customer who lived on Queen Ann hill in that city. On the return trip his driver started back on one of the principal streets, but finding it blocked lower down because of repairs that were being made on it, turned west on a paved street called 'Highland Drive' and followed it until he came to Second Avenue West into which he turned. On leaving the pavement on Highland Drive the front wheels of the wagon dropped into a hole some two feet deep, which caused the wagon to lurch forward, and throw the respondent from his seat to the ground, occasioning the injuries of which he complains. Second Avenue West had not been graded or otherwise improved by the city at the time of the accident and at the place where the respondent turned into it was somewhat steep, although not too steep for safety when in ordinary repair. The hole was caused by the wheels of wagons passing from the hard unyielding pavement to the softer yielding eartb of the street, and by the wash from the overflow of the gutters extending along Highland Drive. Neither the respondent nor his driver noticed the hole until they got almost directly over it, too late to turn back or avoid it. It did not appear that the city had actual knowledge of the condition of the street at the time of the accident, but it was shown that a hole was made at that place by the passage of teams and the action of the water shortly after the pavement was put down on Highland Drive, which was several months prior to the accident, and that it had been refilled with earth and washed out several times between its first appearance and the time of the injury, although no attempt had been made to repair it permanently. It also appeared that by going further around the respondent could have descended the hill and reached his place of...