Cowie v. City of Seattle

• Decision Date: 18 July 1900
• Citation: 22 Wash. 659,62 P. 121
• Parties: COWIE et ux. v. CITY OF SEATTLE.
• Court: Washington Supreme Court

62 P. 121

22 Wash. 659

COWIE et ux. v. CITY OF SEATTLE.

Supreme Court of Washington

July 18, 1900

Appeal from superior court, King county; E. D. Benson, Judge.

Action by W. H. Cowie and wife against the city of Seattle to recover damages sustained from an alleged obstruction on a sidewalk. From a judgment for defendant, plaintiffs appeal. Reversed.

Fred H Peterson, for appellants.

W. E Humphrey and Edward Von Tobel, for respondent.

ANDERS J.

Tenth avenue South is one of the public streets of the city of Seattle, extending south from Main street in said city. Jackson street is the next street south of and parallel to Main street, and south of that is Lane street. On the west side of Tenth avenue South there was a wooden sidewalk about eight feet wide, and upon this sidewalk, between Main and Jackson streets, there was situated a board or plank 'incline' extending from the door of a blacksmith shop, at the inner side of the walk, outward for a distance of four or five feet. The space between the incline and the outer edge of the sidewalk was, it appears, kept in a reasonably safe condition for pedestrians. This incline had been in existence for a period of four or five years prior to the time hereinafter mentioned, during all, or nearly all, of which time the appellant W. H. Cowie resided on the corner of Lane street and Tenth avenue South, and on the west side of the avenue, and had knowledge of the incline, and usually passed by it on the sidewalk in going to and returning from his place of residence. He frequently however, traveled upon the sidewalk on the opposite side of the avenue, and which was in good condition, and without any known obstructions. The evidence clearly shows that at about 11 o'clock on the night of April 16, 1896, Mr. Cowie, while on his way home from 'down town,' stumbled against and fell upon this incline, and was thereby injured. He admitted while upon the witness stand that he knew of the obstruction on the sidewalk which caused him to fall, and frankly testified that he was not thinking of it at the time he came in contact with it. It was dark at the time, and there was no artificial light upon the street in that locality. There was evidence to the effect that the street commissioner and at least one member of the city council had notice of the obstruction long prior to the time of the accident. Indeed, there is some evidence in the record tending to show that the incline was originally placed upon the sidewalk by permission of the city. In the month of October, 1896, the said W. H. Cowie presented to the city his claim for damages, and filed the same with the city clerk, which claim was rejected by the city council. He thereupon instituted this action against the city to recover damages for the injuries thus sustained, alleging negligence on the part of the city in failing to keep the sidewalk in a safe condition for travel. The city, in its answer to the complaint, denied the alleged negligence on its part, and pleaded contributory negligence on the part of the plaintiff as a defense to the action. The plaintiff at the trial fairly established by his evidence the facts above set forth. No testimony was offered on behalf of the defendant city, and, after the jury were instructed by the court, they returned a verdict for the defendant, upon which judgment was subsequently entered. This is an appeal from that judgment.

There is no controversy regarding the facts in this case, but it is alleged by the appellants that the trial court erred in giving certain instructions to the jury at the request of the respondent, and in refusing to give certain other instructions requested by appellants. The refusal of the court to give to the jury the following instructions is especially urged as error by the appellants: '(3) But if you should find that the street commissioner did not have actual knowledge of the existence of this obstruction, then I instruct you that the law is that, if the incline was in existence for such a length of time that the city authorities, by the exercise of ordinary vigilance, would have discovered it in time to prevent the accident, the city cannot escape liability for want of notice. Under such circumstances the law imputes notice. Failure to discover a danagerous defect in a public street within a reasonable time is itself negligence. (4) The duty of the city was to exercise ordinary care to keep its sidewalks safe for travel and it is for you to determine whether or not the sidewalk complained of was reasonably safe, considering the condition it was in as shown by the testimony in this case. If you find from the evidence that the plaintiff knew of the existence of the incline, but had forgotten about it, or failed to think of it, while walking along, plaintiff will, nevertheless, be entitled to recover if he otherwise exercised ordinary care while using the sidewalk.' Appellants also allege that the court erred in giving to the jury the following instruction at the instance of the respondent: '(3) You are further instructed that if said Cowie had knowledge at the time of such injury of the defective condition of said walk (if you find that it was in an unsafe and defective condition), then it was incumbent upon him to use and exercise a degree of care and caution commensurate with the dangers to be encountered; and if it is proven that he, at the time of the accident, forgot such defect, that fact alone would not avail him as an excuse.' '(9) The court further instructs you that, although you find that the sidewalk in question was defective and unsafe at the point where plaintiff W. H. Cowie was injured, and at said time, yet if you further find that at said time he knew of such defective condition, but at the time of the accident forgot such fact, and that it was by reason that he forgot such defective condition that he was injured,--that is, that by reason of such forgetfulness he failed to exercise a degree of care and caution commensurate with the danger to be encountered,--and that such failure on his part to so remember was the approximate or direct cause of his injury, then plaintiff cannot recover, and the fact that the sidewalk was defective and unsafe would be immaterial.' Instruction No. 7 requested by the respondent is also objected to, and is as follows: '(7) You are further instructed that if you find from a preponderance of the evidence that the plaintiff W. H. Cowie was himself guilty of any negligence, and that such negligence was itself a cause of his injury, then you have no right to take into consideration the question whether the plaintiff W. H. Cowie or the defendant was more or less negligent in the premises; and if you find that said W. H. Cowie was so guilty of negligence which directly caused such injury, then it is your duty to find for the defendant, and it would make no difference in such case whether any defect in the sidewalk assisted in causing such injury.' The court, of its own motion, instructed the jury that knowledge on the part of the street commissioner would be equivalent to actual notice to the city in this case. This instruction, so far as it goes, undoubtedly states the law correctly; but, inasmuch as the city could not escape liability for want of notice if it had either actual or constructive notice of the condition of the sidewalk, we are of the opinion that the learned judge should have given to the jury the third instruction requested by the appellants. This request clearly states the law as previously announced by this court. Lorence v. City of Ellensburgh, 13 Wash. 341, 43 P. 20. But we think that appellants' fourth request was properly refused, for it does not, as a whole, correctly state the law. The last part of the proposed instruction states that, if the plaintiff knew of the existence of the incline, but had forgotten it, or failed to think of it, while walking along, he will nevertheless be entitled to recover if he otherwise exercised ordinary care while using the said walk. By this request the court was asked to charge the jury, in effect, that they might disregard the fact that the plaintiff knew of the incline, but failed to think of it while walking on the sidewalk, if he otherwise exercised ordinary care. This is not the law. The only question to be determined by the jury on the issue of contributory negligence was whether the plaintiff, at the time of the accident, was exercising such care and caution as a person of ordinary prudence would use under similar circumstances; and that question could not properly be determined without taking into consideration all the facts and circumstances in evidence, including ...