Ellis v. City of Seattle

• Decision Date: 19 November 1907
• Citation: 47 Wash. 578,92 P. 431
• Court: Washington Supreme Court
• Parties: ELLIS v. CITY OF SEATTLE.

92 P. 431

47 Wash. 578

ELLIS v. CITY OF SEATTLE.

Supreme Court of Washington

November 19, 1907

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by Levi Ellis against the city of Seattle. From a judgment of dismissal, plaintiff appeals. Reversed, and new trial granted.

Wilson R. Gay, for appellant.

Scott Calhoun and Elmer E. Todd, for respondent.

DUNBAR J.

The appellant claims to have been injured on the 9th day of January, 1906, in the city of Seattle, by driving into a hole which it is alleged the city negligently permitted to remain in the street. The claim for damages, which was filed within the time prescribed for filing such claims, was as follows 'That on Tuesday, January 9, 1906, at about 6:30 a. m in the morning of the said day, while he, Levi Ellis claimant herein, was driving a double team or horses and wagon on Westlake avenue, between Thomas and John streets, on the west side of said Westlake avenue, on and near the west trackage of the Seattle Electric Company, and near No. 228 Westlake avenue, in the city of Seattle, King county Washington, said street being regularly laid out by the city as a public thoroughfare and used by the people of said city as such thoroughfare, the claimant, Levi Ellis, while so driving at said place, the street being unlighted, the front wheels of said wagon went into a large hole in said street, the location of said hole and its condition being wholly unknown to this claimant, and this claimant, being unaware of danger was precipitated from the said wagon, was thrown to the ground in said street, and received serious injuries hereafter described, for which he claims damages.' The description of the place where the accident happened was set forth in the complaint substantially as it was in the notice. Upon the examination of the plaintiff, it was ascertained that the accident occurred on the east side of the street, instead of the west. The plaintiff, being a man who could not read or write, testified that the description in the notice and complaint was a mistake, and the attorney for the plaintiff also testified that it was a mistake which had crept in without his attention being called to it. Upon the conclusion of the testimony the court took the case from the jury, and dismissed the action, on the ground that there was a variance between the description in the notice and complaint and the proof adduced; so that the only question to be determined in this case is, was the description reasonably sufficient to notify the city authorities of the locality where the accident was alleged to have happened?

This court has uniformly placed a liberal construction upon the requirements of such notice, holding that the notice had a commonsense object, viz., to apprise the officers of the municipality of the location, so that it might be examined with a view to preparing a defense to the action if it was thought a defense should be made, that, if it directs the attention of said officers with reasonable certainty to the place of the accident,...