Carter v. City of Seattle

• Court: Washington Supreme Court
• Writing for the Court: [21 Wash. 587] DUNBAR, J.
• Citation: Carter v. City of Seattle, 21 Wash. 585, 59 P. 500 (Wash. 1899)
• Decision Date: 24 November 1899
• Parties: CARTER v. CITY OF SEATTLE.

59 P. 500

21 Wash. 585

CARTER v. CITY OF SEATTLE.

Supreme Court of Washington

November 24, 1899

Appeal from superior court, King county; O. Jacobs, Judge.

Action by John C. Carter against the city of Seattle. Judgment for plaintiff, and defendant appeals. Reversed.

Edward Von Tobel, for appellant.

John E. Humphries, for respondent.

DUNBAR, J.

This is an action brought by the respondent against the city of Seattle, a municipal corporation, to recover the sum of $5,000 damages for injuries alleged to have been sustained by reason of his falling into an excavation or hole in the sidewalk of a certain street of said city, the allegation being that the city had negligently constructed a sidewalk at that point so as to render said place dangerous and unsafe and negligently permitted said sidewalk at that place, up to and including said date, to remain in a dangerous and unsafe condition; that the city negligently permitted to be in the alley at said point a large excavation or hole, and that while plaintiff (respondent) was going along Pine street he fell into the excavation, and broke his leg. The defendant denied all the affirmative allegations of the complaint, and alleged as an affirmative answer contributory negligence on the part of the plaintiff. Upon trial of the issues the jury returned a verdict in favor of the plaintiff in the sum of $2,000. From this judgment an appeal is taken to this court and error is assigned for the refusal of the court to give certain instructions requested on behalf of defendant, and for the giving by the court of certain other instructions, which we will hereafter notice.

The respondent moves to strike the brief of the appellant, for the reason that it fails to make an assignment of errors, and it is contended that the only way that the giving or refusal to give instructions to the jury, and the admission or refusal to admit testimony, and errors relating to other matters occurring at the trial can be brought into the record is by the motion for a new trial, and the only way errors can be brought to the attention of the supreme court is an assignment of error that the court erred in overruling the motion for a new trial. Quite an elaborate array of authorities is presented in support of this motion, but we do not think that, under our statute, the motion is well taken. The attention of the lower court was called to the alleged errors by due exceptance to the giving of the instructions and the refusals to give, and that is sufficient.

The court, on its own motion, instructed the jury as follows 'The jury are instructed that the mere fact that, after the accident, the city has filled up the hole where the plaintiff claims to have been injured, may be taken into consideration by you in considering the question of negligence or not.' This instruction was excepted to by the defendant, and is one of the errors alleged. On this question of the admissibility of testimony tending to show changes in machinery or repairs in walks or streets after the accident has occurred there is some little conflict of authority, but we think that the overwhelming weight is now opposed to the admission of such testimony. In Kansas and Pennsylvania the courts have held that such testimony is admissible, as tending to show negligence on the part of the municipal corporation or the owners of the machinery. But we are not aware of any other states now holding to this doctrine, although some of the states notably Minnesota, did so hold in their earlier decisions. This doctrine, however, has since been overruled in Minnesota in the case of Morse v. Railway Co., 16 N.W. 358 and in a very strong opinion rendered by Judge Mitchell in that case, among other things, it...