Drake v. City of Seattle

• Decision Date: 23 September 1902
• Citation: Drake v. City of Seattle, 70 P. 231, 30 Wash. 81 (Wash. 1902)
• Parties: DRAKE et ux. v. CITY OF SEATTLE.
• Court: Washington Supreme Court

70 P. 231

30 Wash. 81

DRAKE et ux. v. CITY OF SEATTLE.

Supreme Court of Washington

September 23, 1902

Appeal from superior court, King county; Geo. Meade Emory, Judge.

Action by W. H. Drake and wife against the city of Seattle. From a judgment for plaintiffs, defendant appeals. Affirmed.

W. E. Humphrey, Edward Von Tobel, and John P Hartman, for appellant.

Geo. E Morris, for respondents.

FULLERTON J.

The respondents, who were plaintiffs below, are husband and wife. They brought this action to recover for personal injuries received by the wife from a fall into an opening made in one of the public streets of the city of Seattle by certain persons who were engaged under a contract with the city in laying a sewer therein. In laying the sewer the contractors did not dig a continuous trench or ditch along the surface of the ground, but dug a series of openings certain distances apart, and connected these by running runnels from one to the other beneath the surface. The opening into which the injured respondent fell was made between parallel street car tracks near the intersection of a cross street, where the street cars stopped for passengers to get on and off, and was some 4 feet wide, 16 feet long, and 12 feet deep. The accident occurred about 7 o'clock in the evening, and after it had become quite dark. A street car, on which the respondents intended to take passage, came along the street, stopping opposite the opening. As the respondents approached the car the injured respondent noticed a vacant seat on the side of the car next to the opening, and, hastening to reach it started down between the car tracks, and, failing to heed, or, perhaps, understand, the warnings which were given when her movements were observed by those having knowledge of her danger, fell into the opening, receiving the injuries complained of. The excavation at that time was without lights or barriers of any kind to make its presence. It appears that the sewer had been in the course of construction for some weeks; that the contractors had during that time given warning of the several openings during the nighttime, by placing lights over them on quitting their work at the close of each day; that they failed to put in place the customary lights on the night in question, for some reason not clearly appearing by the record. It further appears that the city officers first learned that the lights were not in place at about the time the accident happened; that they took immediate steps to place them, doing so as quickly as arrangements for that purpose could be made,--getting them out at about 9 o'clock on the same evening. After the respondents had rested their case the city moved for a nonsuit, basing its motion upon two grounds: (1) That the respondents had failed to show negligence on the part of the city; and (2) that the respondent Elizabeth A. Drake was guilty of contributory negligence. The overruling of this motion constitutes one of the errors assigned for reversal.

In support of the first ground of the motion, the learned counsel for the appellant invoke the rule that a city, when it has once properly guarded a dangerous defect or excavation in one of its streets, and such guards have been removed without its consent or knowledge, cannot be held liable for an injury caused thereby, unless it be shown that it had notice, either actual or constructive, of the removal of the guards, and has had a reasonable time thereafter in which to replace them, and argue that the facts of the case before us bring the appellant within the rule. It is contended that, because lights had been placed by the contractors to guard the several openings on each night prior to the happening of the accident in question, the city cannot be held liable for that accident without a showing that it had notice, prior to the accident, that the lights had not been put in place on that particular evening in time to have remedied the defect. But it seems to us that the rule invoked has no application...