Dunkin v. City of Hoquiam
Decision Date | 22 November 1909 |
Citation | 56 Wash. 47,105 P. 149 |
Court | Washington Supreme Court |
Parties | DUNKIN v. CITY OF HOQUIAM. |
Department 2.
Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.
Action by Harry M. Dunkin against the City of Hoquiam. From a judgment for plaintiff, defendant appeals. Affirmed.
James P. H. Callahan, E. E. Boner, and Sidney Moor Heath, for appellant.
W. H Abel and Morgan & Brewer, for respondent.
This is a suit to recover damages for personal injuries. From a verdict and judgment against the city it has appealed. The complaint states that the appellant is a municipal corporation of the second class; that Second street is one of its principal streets and is planked for a width of 20 feet that on September 24, 1908, at 9:30 o'clock in the evening, the street was obstructed by a ridge of soft mud two feet in height and four to six feet in width, extending the full width of the street; that the city had notice of the obstruction, and that there were no lights or guards to indicate the danger or to protect against it; that at such time the respondent, whilst riding a bicycle at a slow rate of speed, ran into the obstruction, and was thrown violently from his wheel on to the planking upon the street, sustaining great and permanent injuries. The complaint further states that prior thereto the respondent had sustained an injury to his left hand, breaking certain bones, which had about united and recovered; that, by reason of the fall, the bones were rebroken; that prior to the accident the respondent contracted yellow fever; that as a result of the disease he had been subjected to an operation, whereby an opening had been made in his side from which a small portion of the intestine projected; that he was in good health except as to the protruding intestine, which, from the violence of the fall, was torn from the abdominal wall, causing a further prolapse, and causing great pain and suffering; that the respondent will never be able to work; and that his right knee was skinned and bruised. The presentation of a claim for $10,000 was also alleged. Damages were demanded in the sum of $26,230. A motion was interposed to require the respondent to state what officer had been negligent, to state whether the injury to the knee was the cause of the pain and suffering, to require the complaint to be made more definite and certain in other respects, and to strike it as an entirety. The motion being denied, a demurrer was filed and overruled. The answer joined issue upon all the material matters set forth in the complaint except the presentation of the claim to the city for $10,000, and alleged affirmatively (1) that the accident was the result of the respondent's negligence; (2) that the claim sued upon was not presented to the city. The reply joined issue upon the new matter, and the case proceeded to trial and judgment. There was no error in denying the appellant's motion to make the complaint more definite and certain. The respondent was not required to allege the particular officer whose neglect caused the injury. The negligence, if any, was that of the city. The allegation that the respondent received an injury to his right knee, that it was 'skinned and bruised,' was sufficiently definite.
The appellant is a city of the second class. Section 36, c. 241, p. 644, Laws 1907, provides that all claims for damages against the city must be filed with the city clerk, and that no action shall be prosecuted against the city for any claim for damages until the same has been presented to the city council. It is admitted that the respondent in due time filed his claim with the city clerk for damages in the sum of $10,000. The motion sought to strike from the complaint the averment of damages in excess of that sum. There was no error in denying the motion in this respect. The verdict was for $7,500. It seems to be conceded that the error, if any, would have been cured had the court directed the jury that the recovery was limited to $10,000. The question is purely an abstract one in view of the record. The ultimate fact to be determined by the jury was the amount of damages sustained by the respondent. The amount claimed would not change the nature of the testimony, nor influence the verdict.
A motion for nonsuit was interposed at the close of respondent's case, the denial of which is assigned as error. The evidence tended to show that a few days before the accident a property owner had obtained the permission of the street commissioner to dig a trench across the street at the place where the accident occurred for the purpose of laying a sewer pipe; that the trench was dug; that there was a planked way used by the traveling public about 20 feet in width; that across the entire street there was loose dirt or mud taken from the trench, 2 feet or more in height and about 4 feet in width; that the street remained in this condition for about three days without a light or barrier; that about 9:30 in the evening the respondent was riding home on his bicycle, without a light, at reasonable speed; that the night was dark, and the nearest city light was a half block distant from the obstruction; that the street was one of the leading streets of the city; that he was riding upon the planked way; that, when his wheel came in contact with the obstruction, he was thrown over the handle bars and on to the planking, and sustained a serious injury. The evidence showed that the dirt had been there for about three days before the accident happened. The question of the contributory negligence of the respondent, and whether the city in the exercise of reasonable care should have known of the obstruction, were for the jury to determine. There was abundant evidence that the obstruction was of such character as to be dangerous to all traveling in vehicles. It is urged that the admitted physical infirmities of the respondent made it negligence on his part to ride a bicycle in the nighttime. Streets are not maintained solely for the young and strong, and we cannot announce as a rule of law that he was guilty of such negligence as would preclude a recovery. Nor can we upon the facts declare the law to be that the riding of a bicycle without a lantern was an act of negligence.
It is next urged that a new trial should have been granted because the verdict is excessive. The evidence of the respondent tended to show that in 1900 he contracted the yellow fever which resulted in the closing of the lower bowels; that since that time he has had an artificial anus, which he could partially control; that he is 29 years of age; that before the injury he was able to do light work, and that he had been earning $2.50 per day grinding knives in a planing mill until he received the injury to his hand, about five weeks preceding the injury complained of; that his hand was nearly normal at the time of the accident; that before the injury the bowel projected from the side not to exceed an inch, and that he was free from pain; that when he got home a short time after sustaining the injury the artificial anus was bleeding; that it caused him constant pain and suffering; that he has no control over it; that he cannot perform any kind of labor; that the knuckles of the forefinger were rebroken; and that his...
To continue reading
Request your trial-
Roy v. Oregon Short Line Railroad Co.
... ... prejudicial. (22 C. J. 788, 789; Stephens v ... Elliott , 36 Mont. 92, 92 P. 45; City of Topeka v ... Bradshaw , 5 Kan. App. 879, 48 P. 751; Bowerman v ... Columbia Gorge Motor ... 118, 112 P ... 245; Cunningham v. Union P. Ry. Co. , 4 Utah ... 206, 7 P. 795; Dunkin v. City of Hoquiam , 56 Wash ... 47, 105 P. 149; Faras v. Lower California Development ... Co ... ...
-
Kinzell v. Chicago, Milwaukee & St. Paul Railway Co.
... ... 514, 145 P ... 470; Eckhart v. Peterson, 94 Wash. 379, 162 P. 551; ... Edwards v. City of Cedar Rapids, 138 Iowa 421, 116 ... N.W. 323; 38 Cyc. 1320.) ... [33 ... Idaho 6] ... evidence has always been held proper by the courts when ... relevant to the issue. ( Dunkin v. City of Hoquiam, ... 56 Wash. 47, 105 P. 149; Cook v. Danaher Lumber Co., 61 Wash ... 118, ... ...
-
Kendall v. City of Des Moines
...York, 188 N.Y. 131 (80 N.E. 660); Abbott v. Board of County Commissioners, 94 Kan. 553 (146 P. 998); Sweet v. Salt Lake City, supra; Dunkin v. City, supra; City of Valparaiso v. Chester, supra; Wells City of Lisbon, supra; Sweetman v. City of Green Bay, 147 Wis. 586, 132 N.W. 1111; Geise v.......
-
Kendall v. City of Des Moines
...134 Pac. 1167;Wells v. City of Lisbon, 21 N. D. 34, 128 N. W. 308;City of Valparaiso v. Chester, 176 Ind. 636, 96 N. E. 765;Dunkin v. City, 56 Wash. 47, 105 Pac. 149;Loose v. Deerfield Tp., 187 Mich. 206, 153 N. W. 913. In the case at bar, the driver of the automobile testified that he was ......