Connor v. City of Seattle

• Decision Date: 10 October 1913
• Citation: 76 Wash. 37,135 P. 617
• Parties: CONNOR v. CITY OF SEATTLE.
• Court: Washington Supreme Court

135 P. 617

76 Wash. 37

CONNOR v. CITY OF SEATTLE.

Supreme Court of Washington

October 10, 1913

Department 2. Appeal from Superior Court, King County; H. A. P. Myers Judge.

Action by Anthony Connor against the City of Seattle. Judgment for the plaintiff, and defendant appeals. Reversed, with directions to dismiss.

Jas. E Bradford and C. B. White, both of Seattle, for appellant.

Wm Martin and Hugh C. Todd, both of Seattle, for respondent.

ELLIS, J.

The plaintiff brought this action against the defendant, city of Seattle, to recover damages alleged to have been caused to a certain lot belonging to the plaintiff, located on the north side of Jackson street between Tenth and Twelfth avenues in that city. The facts, so far as material, are simple and undisputed.

Some time prior to 1909, the city regraded and widened Jackson street, which is now one of the main thoroughfares through the city from west to east. Cement sidewalks were laid cluster lights were installed, and Jackson street was paved in front of the property and for a considerable distance in both directions. There is no cross street intersecting Jackson street between Tenth and Twelfth avenues. In regrading and widening Jackson street, a bank was left by the city, at an insufficient angle to sustain itself, on the north side of Jackson street for a part of the distance between Tenth and Twelfth avenues, and in November, 1909 this bank slid out across the sidewalk to near the middle of the street for a distance along the street of about 280 feet and to a depth of 15 feet. Some of the cluster lights were buried or knocked down by the slide. The slide does not extend in front of the plaintiff's property; there being a building between the nearest extremity of the slide and the plaintiff's west line. There is no obstruction in Jackson street east of the plaintiff's property. The city has cleared the sidewalk several times, but the situation above described had existed almost continuously since the first slide in November, 1909, to the time of the trial in October, 1912. The plaintiff's building contains three storerooms on the street floor and three flats above, with seven housekeeping rooms in each flat. The slide extends to the street car track in the middle of the street and keeps moving down on the tracks, and during heavy rains the tracks have been kept clear by the city. Traffic on Jackson street at this point is very considerable and has to be carried on both ways on the south side of the street by reason of the slide. The ground of damages laid in the complaint is that the residents of the city no longer pass up and down on the north side of Jackson street in the vicinity of this slide and are diverted from the stores located in the plaintiff's premises. It is claimed that the plaintiff has suffered and is suffering special damage by a reduced value of his property and on account of loss of rents by certain tenants moving out and a reduction of rents as to others because of the negligence of the city in permitting the slide and allowing its continuance. The plaintiff introduced evidence tending to show reduced value of the property and reduced rentals resulting from the failure of the city to clear the sidewalk. He also offered in evidence the claim for damages filed with the city council, which was admitted over the defendant's objection that it was not properly verified and that it did not state the plaintiff's residence for six months last past. At appropriate times the defendant interposed a challenge to the legal sufficiency of the plaintiff's evidence, moved for a nonsuit, moved for a directed verdict and for judgment notwithstanding the verdict, all of which were denied. The trial resulted in a verdict for the plaintiff for $800, from a judgment upon which the defendant has appealed.

The appellant makes many assignments of error but the view which we take of the case makes it unnecessary for us to pass upon any of them save one. It is urged that the claim presented to the city council was fatally defective in that it was not sworn to and in that it did not state the residence of the claimant by street and number at the date of the filing nor his residence for six months immediately prior to the time the claim for damages accrued, as required by chapter 83 of the Laws of 1909 (Rem. & Bal. Code, §§ 7995, 7996, and 7997). That act, by sections, reads as follows:

'Section 1. That whenever a claim for damages sounding in tort against any city of the first class shall be presented to and filed with the city clerk or other proper officer of such city, in compliance with valid charter provisions of such city, such claim must contain, in addition to the valid requirements of such city charter relating thereto, a statement of the actual residence of such claimant, by street and number, at the date of presenting and filing such claim; and also a statement of the actual residence of such claimant for six months immediately prior to the time such claims for damages accrued.

'Sec. 2. That nothing in this act shall be construed as in any wise modifying, limiting or repealing any valid provisions of the charter of any such city relating to such claims for damages, but the provisions of this act shall be in addition to such charter

...