Colquhon v. City of Hoquiam

Citation207 P. 664,120 Wash. 391
Decision Date12 June 1922
Docket Number17200.
PartiesCOLQUHON et ux. v. CITY OF HOQUIAM.
CourtUnited States State Supreme Court of Washington

Department 2.

Appeal from Superior Court, Grays Harbor County; Ben Sheeks, Judge.

Action by John Colquhon and wife against the City of Hoquiam. Judgment for plaintiffs, and defendant appeals. Affirmed.

James O. H. Callahan, of Hoquiam, and E. E. Boner, of Aberdeen, for appellant.

W. H Abel, of Montesano, and John D. Ehrhart, of Hoquiam, for respondents.

MACKINTOSH J.

A discussion of the various assignments of error will introduce sufficient of the facts of this case to render unnecessary a detailed statement thereof. The respondent wife was injured upon a sidewalk in the city of Hoquiam and brought this action for the damages she sustained. The jury awarded her verdict, upon which judgment was entered, and from which the city has appealed.

1. The claim filed by the respondent with the city in describing the condition of the sidewalk, which is alleged to have caused the injury, used this language:

'That said boards were loose, and there were no sills and the boards were not nailed or attached to any sills; that said defective condition had existed since said sidewalks were constructed, a period of more than seven months, and said conditions were well known to the city of Hoquiam, its officers and agents, ever since the sidewalk was constructed that on account of said condition, while traveling along said sidewalk at said time, the said Pearl Colquhon's right foot was caught under the end of one of said loose and raised boards, causing her to fall and be thrown violently, her right knee striking the edge of one of the boards, badly bruising and tearing the muscles and the flesh of said knee and breaking the bone or bones at said knee.'

The complaint uses the same language in describing the defect in the sidewalk. The testimony as to the occurrence was that----

'There was a hole underneath the boards, and it took it down about four inches. * * * I stubbed my toe on the board ahead and tripped and fell.'

It is the appellant's first assignment of error that this claim did not comply with section 7998, Rem. Code, providing that 'all * * * claims for damages must accurately locate and describe the defect that caused the injury, reasonably describe the injury and state the time when the same occurred,' etc., and that the respondent should have been nonsuited for the reason that the testimony was at variance with the situation described in the claim.

We see no variance. The claim was that the respondent's foot was caught in the end of the raised board, and the testimony went to the same effect, that she stubbed her toe on the board by reason of the fact that the board upon which she had just stepped tilted down, thus lowering it below the board ahead. There is nothing in the situation that misled the appellant, and there was a sufficient compliance with the provisions of the statute. Bell v. Spokane, 30 Wash. 509, 71 P. 31; Ellis v. Seattle, 47 Wash. 578, 92 P. 431; Titus v. Montesano, 106 Wash. 608, 181 P. 43.

2. The appellant argues for a nonsuit on the additional ground that the respondent's wife was guilty of contributory negligence. The testimony shows that the appellant had granted abutting property owners permission to take up a worn-out wooden sidewalk and to replace it with a concrete one. The old sidewalk was removed, and dirt had been filled in to make a foundation for a new walk, but before this could be laid the rainy season had set in, and the cement walk could not be laid. On the surface of the fill, in order to provide a passageway that would be free from mud, planks 8 feet long, 8 inches wide, and 2 inches thick, taken from the old walk, were laid end to end, making the walk about 2 feet wide. The planks were loose and unnailed. The appellant claims that this situation was open and apparent, and that the duty was upon one making use of the walk to exercise a greater degree of care than when using an ordinary sidewalk. The testimony, it is claimed, shows that Mrs. Coloquhon used no greater caution than she would have upon an ordinary walk, that she was using it in the daylight, and that her conduct was such that it would not have been indulged in by an ordinary person under the same circumstances. It further shows that she was familiar with the condition of the walk, and had used it on prior occasions. Reference is made to the rule in Shannon v. Tacoma, 41 Wash. 223, 83 P. 186, that a pedestrian cannot make use of a way which he knows to be dangerous, or use the way which one, exercising the degree of care commensurate with the danger, would not have used. The situation being such, it was a question for the jury, to datermine whether, under these facts and conditions, Mrs. Colquhon used reasonable care for her safety. Rowe v. Ballard, 19 Wash. 1, 52 P. 321; Jordan v. Seattle, 30 Wash. 298, 70 P. 743; McClammy v. Spokane, 36 Wash. 339, 78 P. 912; Cady v. Seattle, 42 Wash. 402, 85 P. 19; Stock v. Tacoma, 53 Wash. 226, 101 P. 830; and Lautenschlager v. Seattle, 77 Wash. 12, 137 P. 323.

3. This, in effect, disposes of another contention of the appellant that Mrs. Colquhon was guilty of contributory negligence, as a matter of law, for the reason that she did not take a safer way, to wit a planked railroad track, situated in the middle of the street, which the testimony shows she had used on prior occasions, and which was largely used by the public in preference to the sidewalk. The case of Chase v. Seattle, 80 Wash. 64, 141 P. 180 is cited. That case, however, was one where there was an obstruction into which the driver drove his wagon in the portion of the street being improved, which was not open to travel, and the situation was open and apparent to any one passing along the road, whereas the other side of the street which was left open for travel was reasonably safe. It was held that the city had performed its full duty in keeping a portion of the street in safe condition. It has not been held that a person is guilty, as a matter of law, of contributory negligence when he uses a dangerous way, even though there may be a safer way, where he used the degree of caution that would be exercised by a reasonably prudent man in traveling the dangerous way. McQuillan v. Seattle, 10 Wash. 464, 38 P. 1119, 45 Am. St. Rep. 799; Jordan v. Seattle, supra; Shannon v. Tacoma, supra; Cady v. Seattle, supra; Archibald v. Lincoln County, 50 Wash. 55, 96 P. 831; Stock v. Tacoma, supra.

4. It is next urged that there was no evidence that the city had notice of the defective condition before the accident. The evidence, however, shows that permission...

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7 cases
  • Kelley v. Curtiss, A--623
    • United States
    • New Jersey Superior Court – Appellate Division
    • January 18, 1954
    ...284 Pa. 215, 130 A. 428 (Sup.Ct.1925); Fritz v. City of Watertown, 21 S.D. 280, 111 N.W. 630 (Sup.Ct.1907); Colquhon v. City of Hoquiam, 120 Wash. 391, 207 P. 664 (Sup.Ct.1922); Sheel v. City of Appleton, 49 Wis. 125, 5 N.W. 27 (Sup.Ct.1880); 63 C.J.S., Municipal Corporations, § 943, p. 469......
  • Peterson v. Pacific S.S. Co.
    • United States
    • United States State Supreme Court of Washington
    • November 3, 1927
    ......See, also, on the. measure of damages, Colquhon v. Hoquiam, 120 Wash. 391, 207 P. 644; Allison v. Bartelt, 121 Wash. 418,. 209 P. ......
  • Amann v. City of Tacoma
    • United States
    • United States State Supreme Court of Washington
    • November 29, 1932
    ......Seattle, 28 Wash. 593, 69 P. 12, 61 L. R. A. 583, 92 Am. St. Rep. 892; Noll v. Seattle, 29. Wash. 28, 69 P. 382; Colqohon v. Hoquiam, 120 Wash. 391, 207 P. 664; Rowe v. [170 Wash. 304] Richards, 32 S.D. 66, 142 N.W. 664, L. R. A. 1915E, 1069; Langan v. City ......
  • Smith v. City of Tacoma, 23198.
    • United States
    • United States State Supreme Court of Washington
    • July 24, 1931
    ...Wash. 191, 186 P. 271; Clausing v. Kershaw, 129 Wash. 67, 224 P. 573; Glasgo v. Spokane, 139 Wash. 75, 245 P. 406. In Colquhon v. Hoquiam, 120 Wash. 391, 207 P. 664, 665, in discussing the question of a nonsuit asked on the that the woman injured was guilty of contributory negligence, the c......
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