Carroll v. Centralia Water Co.

• Decision Date: 31 January 1893
• Citation: 5 Wash. 613,32 P. 609
• Parties: CARROLL v. CENTRALIA WATER CO.
• Court: Washington Supreme Court

32 P. 609

5 Wash. 613

CARROLL v. CENTRALIA WATER CO.

Supreme Court of Washington

January 31, 1893

Appeal from superior court, Lewis county; Edw. F. Hunter, Judge.

Action by William H. Carroll against the Centralia Water Company. Judgment for plaintiff. Defendant appeals. Affirmed.

For dissenting opinion, see 33 P. 431.

Geo. E Rhodes and Tripp, Town, Likens & Dillon, for appellant.

A. E Rice and C. B. Reynolds, for respondent.

ANDERS J.

This action was brought by the respondent to recover damages for injuries sustained by falling into an excavation alleged to have been made in a common and public highway in the city of Centralia, and negligently left open and unguarded, by the appellant. Judgment was entered upon the verdict of the jury in favor of the plaintiff, to reverse which the defendant prosecutes this appeal.

It is shown by the evidence in this case, beyond dispute, that the appellant corporation caused a hole about 4 feet deep, and some 18 or 20 inches in diameter, to be dug in an alley running north and south between blocks 15 and 16, in Railroad addition to the city of Centralia, for the purpose of placing therein a telephone pole, and that on the night of March 28 1891, which was cloudy and dark, it was left uncovered, and without any barrier to prevent travelers from falling into it, or anything to warn them of danger. The respondent lived some distance from the business portion of the town, and at about 9 o'clock that night was returning home from the store and butcher shop, where he had purchased some eggs and beefsteak, which he carried in a pail. From the street west of the blocks mentioned to the alley the land was level and uninclosed; and the respondent passed over this vacant space and into the alley, where he stepped into the hole dug by appellant, and fell forward, and severely injured the joint of his left knee. He was well acquainted with the premises where the accident happened, and had been accustomed to go that way in passing to and from his home, for 15 or 18 months previously, but had no knowledge of the existence of the excavation until he fell into it. Other persons, and especially those living in that part of town, frequently passed and repassed at the same place.

No claim is made by appellant that the damages awarded by the jury are excessive, but the appellant contends that the court committed prejudicial error in curtailing the cross-examination of the plaintiff, in denying appellant's motion for a nonsuit, in holding that the plaintiff had proved that the city of Centralia was incorporated, and in charging the jury upon the law applicable to the case.

As to the cross-examination of plaintiff, we fail to perceive how the appellant was prejudiced by the action of the court in not permitting, on its own motion, the questions, "How much beefsteak" the witness had purchased while down town that evening, and "How were you carrying them?" (referring to the eggs and beefsteak,) to be answered, in view of the fact that the witness had already testified that he was carrying "two dozen eggs in a tin pail, and two pounds of beefsteak," at the time the accident occurred. While a party has a perfect right to freely and fully cross-examine the witnesses of his adversary upon all material matters brought out on the examination in chief, still the character and extent of such examination rest largely in the sound discretion of the court; and, unless such discretion is abused, to the injury of the party complaining, the judgment will not be reversed, even although the examination is not allowed to be carried to the extent desired by counsel. We think the cross-examination in this instance was not unduly restricted, as to any of the points mentioned in the brief of appellant. The manner in which the witness was traveling, what he was carrying, the condition and character of the surface of the ground, and whether or not the witness was walking in a well-defined path at the time he received the injury complained of, were questions to which the cross-examination was directed, and upon which the witness testified fairly and freely, and without any apparent endeavor to conceal the facts.

The complaint alleged that the excavation into which the plaintiff fell was in a common and public highway, and "within the corporate limits of the city of Centralia;" and the court held that the plat of Railroad addition to the city, which was introduced in evidence, and which was of record in the office of the county auditor, and on which the alley was shown in which it was alleged that the excavation was made by defendant, was sufficient proof of the allegation of the complaint. The material question was not whether the city of Centralia was in fact incorporated, but whether the place described was a public highway, and the plat was competent evidence to prove that fact. In every city or town which has been surveyed and platted, and a plat thereof, showing the roads, streets, and alleys, has been filed in the office of the auditor of the county in which such city or town is located, the roads streets, and alleys, as shown by such plat, are made public highways by statute. See 1 Hill's Ann. St. §§ 744-746, 755. It follows, therefore, that the alley between blocks 15 and 16 of Railroad addition to the city of Centralia, as shown by the plat, was and is a public highway, over which all persons have a right, at any and all times, to pass; and the court would have been justified in so charging the jury. Moreover, the alley must have been within the jurisdiction of the city, else the appellant would not have attempted to justify its action in digging the hole, as it did, by introducing in evidence a resolution of the city council authorizing it to place its telephone poles in the streets and alleys. It would seem, therefore, that the fact, if it be a fact, that the court deemed the...