Durham v. City of Spokane

• Decision Date: 12 March 1902
• Citation: 27 Wash. 615,68 P. 383
• Court: Washington Supreme Court
• Parties: DURHAM et ux. v. CITY OF SPOKANE.

68 P. 383

27 Wash. 615

DURHAM et ux. v. CITY OF SPOKANE.

Supreme Court of Washington

March 12, 1902

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Action by William C. Durham and wife against the city of Spokane. From a judgment for plaintiffs, defendant appeals. Affirmed.

F. M Dudley, T. D. Rockwell, and J. W. Merritt, for appellant.

John H Roche and Harris Baldwin, for respondents.

FULLERTON J.

This is an action for personal injuries received by the respondent from a fall upon the sidewalk of the appellant city. The trial resulted in a judgment in favor of the respondents.

The first error assigned is upon the refusal of the trial court to sustain a general demurrer to the complaint. That part of the complaint material to the question presented alleged, in substance: That a certain street of the appellant city, known as 'Riverside Avenue,' was at the time of the injuries complained of, and is now, one of the principal business, and most frequently traveled, streets of the city, and was at all the times in the complaint mentioned under the direct supervision and control of the appellant. 'That on or about the 15th day of August, 1889, and at the time plaintiff received the injuries hereinafter mentioned and a long time prior thereto, the defendant carelessly and negligently, and for want of ordinary care permitted and allowed the sidewalk on the north side of Riverside avenue, between Lincoln and Monroe streets, and more particularly that portion of said sidewalk near and adjoining Monroe street, and directly in front of the building known as the 'Dodd Block,' to become old, rotten, unsafe, and out of repair, and dangerous for the public to travel thereon, and the superintendent of streets of said city had actual notice thereof more than twenty-four hours next before the injury herein complained of, and, having actual notice thereof, and well knowing for a period of more than four months the said sidewalk to be old, rotten, unsafe, and out of repair, and dangerous for the plaintiff and public in general to travel thereon, and was old, rotten, unsafe, and out of repair, and dangerous in this, to wit: That the said sidewalk was then and there composed of wooden boards which were worn by long previous use in said sidewalk, and were rotten with age, and from long exposure to the weather and elements, so long that the said boards composing said sidewalks were then and there in such a weak condition that they and the sidewalk would not sustain the weight of an ordinary adult person, and, by reason of said condition of said boards and said sidewalk, there were then and there in said sidewalk several holes, the number of which is to these plaintiffs unknown. That on the 15th day of August, 1889, while the said Hattie C. Durham was then and there walking along and upon said sidewalk on the north side of Riverside avenue, between Lincoln and Monroe streets, in the said city of Spokane, and directly in front of the building known as the 'Dodd Block,' being about No. 926 on said Riverside avenue, and about sixty-five yards from the east side of the south end of the Monroe street bridge, in said city of Spokane, and while exercising ordinary care, and not knowing the dangerous and unsafe condition of said sidewalk, her foot, by reason of said condition of said sidewalk, went through a hole in said sidewalk, and became fastened therein, and by reason thereof she fell through and upon said sidewalk, and then and there sustained thereby the following injuries, to wit,' etc. The particular objection made to the complaint is that it fails to allege that the hole into which the respondent's foot went and became fastened--the direct cause of the injury--was one of the holes theretofore existing in the walk, of which the city had knowledge. But as we understand the complaint, the gravamen of the allegation is that the general bad and unsafe condition of the sidewalk at the place where the injury occurred, and not any particular hole therein, was the cause of the injury; that this condition existed for a long period of time, to the actual knowledge not only of the city officers generally, but of the particular officer whose duty it was to superintend the streets and sidewalks, and protect the public against dangers arising from defects therein. This being true, the particular hole the respondent stepped into is not material. If the sidewalk at the place where the injury occurred was old, rotten, full of holes, and out of repair, and dangerous generally, and had been so for a period of four months prior thereto, and such condition was the cause of the injury, it can make no difference as to the city's liability therefor whether the injured person stepped into an existing hole, or a hole made by her at the time of the injury, or, if she did step into an existing hole, whether that particular hole existed for a long or for a short period of time, provided, of course, she was not guilty of contributory negligence. The complaint, in describing the particular cause of the injury, must, it is true, state the facts with reasonable certainty; but it would have been enough to have stated them in language much more general than is used in the present complaint. The case of City of Huntington v. Burke (Ind. App.) 39 N.E. 170, relied upon by the appellant, seems to us not to be in point. True, stress is laid upon the fact that neither the size, character, nor extent of the hole or broken place into which the plaintiff stepped were in any manner indicated; but the decision is rested upon the proposition that there was no allegation that the hole and broken place in the sidewalk, the defect which caused the accident, was the defect which the city had knowingly suffered to exist in the sidewalk. To quote from the opinion: 'If the defect...