City of Seattle v. Puget Sound Imp. Co.
| Decision Date | 05 August 1907 |
| Citation | 91 P. 255,47 Wash. 22 |
| Parties | CITY OF SEATTLE v. PUGET SOUND IMP. CO. |
| Court | Washington Supreme Court |
Appeal from Superior Court, King County; Geo. E. Morris, Judge.
Action by the city of Seattle against the Puget Sound Improvement Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
Bausman & Kelleher, Peters & Powell, and R. P. Oldham, for appellant.
Scott Calhoun and Elmer E. Todd, for respondent.
This action was brought by the respondent to recover over from the appellant the amount of a judgment for personal injuries recovered by C. S. Smith against the city, and paid by the city. The case was tried to the court without a jury, and a judgment was rendered against the appellant. The appellant alleges that the court erred in overruling a demurrer to the complaint and in making certain findings of fact.
The material allegations of the complaint are as follows 'That Second avenue is now and was at all times herein mentioned a public street in said city of Seattle, being one of the principal streets in said city and a common thoroughfare, and as such much used by the public; that at all times herein mentioned said defendant was the owner of lots 1 and 4, in block 6, of the plat of the town (now city) of Seattle, as laid off by C. D. Boren and A. A. Denny, in the county of King, state of Washington; that at all times herein mentioned there was situated on said lot a four-story brick building, known as the 'Boston Block,' and under the sidewalk on Second avenue in front of said lots particularly in front of that store building in said block known as 'No. 722 Second Avenue,' in said city, said defendant maintained an area way, and at or near said store building in said sidewalk maintained a trap-door down into said area way and cellar, beneath said sidewalk; that on the night of the 19th of October, 1901, and for many months prior thereto, the defendant had negligently and carelessly maintained said trap-door in said sidewalk as aforesaid; that said trap-door, which was made of iron, was unlawfully and dangerously raised above the surface of the adjoining sidewalk for a height of from two to three inches; that said opening in the sidewalk was covered as aforesaid by iron trap-doors, which met over the middle of said opening; that at said point of meeting one of said iron doors projects above the other, and said iron doors had become on the surface worn smooth, and at all times were slippery and dangerous to life, and to travelers using the same in walking over said sidewalk in the ordinary and usual manner; that said defendant carelessly and negligently failed to place any danger signals as a warning around or about said defective place in said street and sidewalk and said obstruction thereon contained; that on the night of said 19th of October, 1901, one Christina D. Smith, while lawfully traveling along said Second avenue, at or near No. 722 Second avenue, stumbled on said iron doors, and, the same then and there being slippery, stumbled, slipped, and fell, and was thereby thrown on said iron doors on said sidewalk and ground, and therefrom she sustained great and severe injuries.' Then follow allegations of the extent of the injuries to Mrs. Smith; that she duly presented her claim to the city for damages; 'that thereafter, to wit, on or about the 11th day of February, 1902, said Christina D. Smith and Lee Smith, her husband, instituted an action in the superior court of King county, Wash., to recover damages against the city of Seattle on account of said injuries so received as aforesaid, which cause is numbered 34,982 in the files of said court; that said city of Seattle duly defended against said action, and issues were joined therein, and a trial was had upon said issues in said court on January 29 1903, resulting in a verdict in favor of said Christina D. Smith and her husband in the sum of $7,653; that said city of Seattle duly filed its motion for a new trial, which said motion was denied by the court, and judgment entered upon said verdict in the sum of $7,633 and costs against said city; that from said judgment the city of Seattle duly appealed to the Supreme Court of the state of Washington, and thereafter the Supreme Court of the state of Washington affirmed said judgment of the superior court, with costs; that thereafter, on the 23d day of December, 1903, the remittitur from the Supreme Court affirming said judgment was filed in the office of the clerk of said superior court, and final judgment was entered against said city of Seattle for $7,633 and costs, amounting to $180.15; that on said 23d day of December, 1903, the city of Seattle was forced to and did pay said judgment, with interest and costs amounting in the aggregate to $8,151.91; that in addition thereto said city of Seattle was forced to and did expend as necessary expense in defending said suit and in prosecuting said appeal the sum of $500.' Then follows an allegation of notice to the appellant to defend the suit.
Upon the sufficiency of this complaint the appellant argues that the complaint shows that the appellant and the city were joint tort-feasors, and, since there can be no indemnity by one joint tort-feasor against another, there can be no recovery in this case. But, as we read the allegations of the complaint, we find nothing in it to justify the conclusion that the city and the appellant were joint tort-feasors. The allegations are that the defendant maintained an area way beneath the sidewalk and trap-doors in the sidewalk; that the trap-doors were carelessly and negligently maintained by defendant, and were unlawfully and dangerously raised above the surface of the sidewalk two or three inches; that said doors were worn smooth and slippery, and were dangerous and that defendant failed to protect against such dangers. These allegations are that the negligence was of the defendant, not of the city. It is true that it is the duty of the city to keep its streets reasonably safe, and if the trap-doors had been placed in the sidewalk by the city, for the benefit of the city, it would alone be liable. But, where the trap-doors were placed in the sidewalk by the defendant for its sole use and benefit, it was the duty of the defendant to properly and safely place and maintain...
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