Clark v. City of Seattle

• Decision Date: 08 April 1918
• Docket Number: 14416.
• Citation: 102 Wash. 228,172 P. 1155
• Parties: CLARK v. CITY OF SEATTLE (two cases.
• Court: Washington Supreme Court

172 P. 1155

102 Wash. 228

CLARK v. CITY OF SEATTLE (two cases.

No. 14416.

Supreme Court of Washington

April 8, 1918

Department 1. Appeal from Superior Court, King County; Ralph C. Bell Judge.

Consolidated actions by Virginia A. Clark and by Virginia A. Clark, a minor, against the City of Seattle. From a judgment for defendant, plaintiffs appeal. Affirmed.

Vanderveer & Cummings, of Seattle, for appellants.

Hugh M Caldwell and Frank S. Griffith, both of Seattle, for respondent.

MAIN, J.

This is an appeal from a judgment dismissing two actions which had been consolidated for the purpose of trial. One action was brought on behalf of a child, who had sustained a personal injury; the other, by the mother of the child, for the loss and expense which she had sustained by reason of the injury to the child.

In one of the public parks of the respondent city there was constructed and maintained what is known as the Lincoln Playfield. In this playfield had been constructed a cement wading pool, the water in which at its deepest place was about one foot. In this pool children were accustomed, during the warm weather, to wade for recreation and amusement. On the 27th day of August, 1916, Virginia A. Clark, a child then about the age of 10 or 11 years, while wading in the pool cut her foot on a broken glass bottle. How the bottle got into the pool is not known. After the injury there was taken from the pool a small glass bottle, which was broken in two pieces. At the conclusion of the evidence offered in support of the recovery, the city challenged the sufficiency thereof and moved the court for a judgment of dismissal. This motion was sustained, and from the judgment dismissing the actions the appeal is prosecuted.

The appellants recognize the rule of nonliability of the city while acting in a governmental capacity, for the tortious acts or omissions of its agents, as stated in Russell v. Tacoma, 8 Wash. 156, 35 P. 605, 40 Am. St. Rep. 895, and Howard v. Tacoma School District No. 10, 88 Wash. 167, 152 P. 1004, Ann. Cas. 1917D, 792; but it is claimed that the facts in the present case show that the city was guilty of maintaining a nuisance, and for this reason the rule stated in the cases referred to does not apply. For the purposes of this case only it will be assumed, but not decided, that the city, even though acting in a governmental capacity, would still be liable for the maintenance of a...