Roberts
Wilson & Skeel and J. J. Geary, all of Seattle, for
respondents.
ELLIS
C.J.
In this
action plaintiff city seeks to recover over from defendants
the
amount of a judgment for personal injuries caused by a fall
upon a sidewalk, which judgment was recovered by one Walter
L. Johnstone in an action against the city, tried by the
court without a jury, and by the city paid. This action over
was also tried by the court without a jury.
The
trial court, after finding the corporate capacity of the city
and that the defendants are husband and wife, found:
'(3) That on the 6th day of October, 1910, lot 1, block
18, Northern addition to the city of Seattle, stood of record
in the name of Mary Agnes Shorrock.
'(4) That on the 6th day of October, 1910, Mary Agnes
Shorrock made application to the board of public works of the
city of Seattle for a permit to use and improve the parking
strip in front of said lot 1, block 18,
Northern addition to the city of Seattle, and abutting on
Galer street, said lot being at the corner of Eighth Avenue
West and Galer street, in the city of Seattle, which said
permit was by the board of public works granted, and a permit
issued to the defendants, a copy of which permit is hereto
attached, referred to and made a part hereof as is fully set
forth herein.
'(5) That defendant improved a portion of the parking
strip between the sidewalk and the line of their lot by
constructing retaining walls opposite their walk from the
city steps to a house constructed on said lot; that in
addition thereto, but without any additional or further
permit, the defendants improved the remainder of the parking
strip by planting bushes, shrubbery, flowers, and lawn; that
defendants stretched and maintained on said parking strip a
few inches south of the city sidewalk a wire for the support
and protection of the bushes on said parking strip.
'(6) That on the night of January 14, 1916, said wire was
placed upon or projected over the sidewalk and contributed to
the injury of Walter L. Johnstone, as hereinbefore described;
that at no previous time was said wire on or over said
sidewalk, and said wire was not placed on said sidewalk by
the defendants or with their knowledge or consent.
'(7) That on the 14th day of January, 1916, Walter L.
Johnstone was proceeding to his home on Galer street and
Sixth avenue, and while walking down the hill upon the
sidewalk he slipped and fell, and while in the act of falling
was dashed against said wire; that, in falling he broke his
arm, causing him great pain and suffering.
'(8) That on the 4th day of May, 1916, said Walter L.
Johnstone commenced an action in the superior court of the
state of Washington for King county against the city of
Seattle, said cause being numbered 115509 of the files of the
superior court of King county, to recover damages for the
injuries suffered by him. Issues were framed, and on the 21st
day of June, 1916, said cause came on regularly for trial,
and resulted in a judgment against the city of Seattle in the
sum of $290, and costs in the sum of $26,
which sums the city of Seattle was required to and did pay to
the said Walter L. Johnstone.
'(9) That on the 12th day of May, 1916, the plaintiff
caused to be served upon each of the defendants a notice to
appear and defend, a copy of which notice is attached hereto,
referred to, and made a part of this paragraph as though
fully set forth herein.
'(10) That on the trial of the action of Walter L.
Johnstone against the city of Seattle, No. 115509, E. L.
Skeel was present in court representing the defendants, E. G.
Shorrrock and Mary Agnes Shorrock, and was present as their
attorney, and participated at the time the court made its
findings of fact.
'(11) That in said action the court, among others, made
the following finding of fact: 'Said injury and fall was
caused solely and proximately by the carelessness and
negligence of the defendant, as follows: (a) Said defendant
and its employés permitted and allowed the said cement
sidewalk or street on Galer street between Seventh Avenue
West and Eighth Avenue West, in the city of Seattle, at which
point the same has a sharp and precipitous grade, to become
covered with ice and snow in a rough, dangerous, and slippery
condition, and to remain in that condition for a number of
days, to wit, between December 31, 1915, and the time of the
fall hereinabove mentioned, to wit, the night of January 14,
A. D. 1916, contrary to law, and plaintiff, while proceeding
as aforesaid, and using all possible care and caution,
slipped and slid upon the rough ice covering said sidewalk as
aforesaid, thereby completely losing control of his footing,
and while in the act of falling was dashed against some wire
which defendant negligently permitted to extend out over said
sidewalk, which entangled his right leg, rendering plaintiff
less liable to recover himself and lessen the fall which
thereon followed, resulting in his arm being broken as
aforesaid, said wire was the proximate cause of said injury.
(b) Said defendant, and its officers and employés, failed to
enforce, and permitted the violation of section 92 of
Ordinance 16081 of the city of Seattle, which is as follows:
'Ordinance No. 16081. An ordinance
regulating the use and occupation of and the conduct of
persons in or upon streets, avenues, ways, boulevards,
drives, places, alleys, sidewalks, parking strips, squares,
triangles, comfort stations, school grounds, play grounds,
recreation grounds, parks, park ways, park boulevards, park
drives, park paths and public places and wharves, station
grounds and rights of way open to the use of the public and
the space above or beneath the surface of the same, and
providing for the control of the same, and for the safety,
comfort and convenience of the public in the use of the same
and providing penalties for violations thereof. Sec. 92.
Obstruction of Sidewalks and Public Places by Waste
Material.--It shall be unlawful for any person to throw
on any sidewalk any vegetable or fruit or other substance
liable to cause any person injury, or to throw upon or into
any public place, or in any gutter, any kitchen refuse,
paper, sweepings or other substance liable to close up or
choke any gutter, or to permit any accumulation of snow or
ice upon any planked or paved sidewalk in front of any
premises owned or occupied by him.' (c) The said
defendant constructed and maintained a steep incline or grade
on the cement walk on Galer street between Seventh Avenue
West and Eighth Avenue West, without cleats. (d) Said
defendant permitted the said street, particularly at the
place where plaintiff sustained his injuries and fall, as
hereinabove mentioned, to be improperly lighted and dark, and
the said darkness rendered it difficult for plaintiff,
although he was using all caution possible, to pick his steps
and protect himself against the aforesaid slippery and icy
condition of said walk.
'(12) That on the 11th day of February, 1916, Walter L.
Johnstone duly filed with the city council and city clerk of
the city of Seattle a duly verified claim, which is file No.
63278 in the comptroller's office of the city of Seattle,
and a public record.
'(13) That Galer street between Seventh and Eighth
Avenues West is exceedingly steep. A sidewalk with a 20 per
cent. grade runs from Eighth Avenue West to a point near the
rear of defendants' residence, and at
that point the street becomes abruptly steeper, so that a
sidewalk can no longer be used, and cement steps are
maintained by the city of Seattle.
'(14) That if the city of Seattle had not been negligent
in failing to maintain the light for
Galer street, or if the city of Seattle had not been
negligent in failing to maintain cleats or guard rails or
some other safeguards upon the sidewalk, or if the city had
not been negligent in failing to keep the sidewalk clear of
snow and ice, the said Walter L. Johnstone would not have
stumbled and fallen, and the accident would not have
occurred.
'Done in open court this 24th day of July, 1917.
John S. Jurey, Judge.'
From
these findings the court concluded that the action over
should be dismissed with prejudice, and that defendants
should recover their costs. Judgment went accordingly, and
plaintiff appealed.
No
claim of error is assigned touching the admission or
exclusion of any evidence. No argument is offered against any
of the findings made by the court save that last above
quoted. So far as the record shows, no specific exception was
taken by appellant to that or any other finding. The only
exceptions presented by the record are found in the
clerk's minutes as follows:
'Findings of fact and conclusions of law signed.
Exception allowed. Plaintiff's proposed findings of fact
and conclusions of law offered and refused. Exception is
allowed.'
It is
settled law in this state that such general exceptions are
wholly insufficient to raise any question in this court other
than that of the sufficiency of the findings to sustain the
judgment. But, since respondents have not raised that
question, we have examined the evidence with care. It amploy
sustains the findings.
Appellant
contends that these findings make a judgment over in its
favor imperative for any one of three reasons: (1) Because in
the permit granted to respondents to use the
parking strip on Galer street they covenanted...
