Elster v. City of Seattle

• Decision Date: 17 December 1897
• Citation: 51 P. 394,18 Wash. 304
• Parties: ELSTER v. CITY OF SEATTLE.
• Court: Washington Supreme Court

51 P. 394

18 Wash. 304

ELSTER v. CITY OF SEATTLE.

Supreme Court of Washington

December 17, 1897

Appeal from superior court, King county; T. J. Humes, Judge.

Action by Harris Elster against the city of Seattle. Judgment for plaintiff. Defendant appeals. Affirmed.

John K Brown and F. B. Tipton, for appellant.

Will H Thompson, John E. Humphries, and E. P. Edsen, for respondent.

DUNBAR J.

This is an appeal from the judgment of the superior court of King county allowing damages to respondent for an injury sustained by falling on a sidewalk in the city of Seattle, and breaking his leg by said fall. It appears from the testimony in this case that at the place where the respondent fell one plank was slightly raised above the other, and when the respondent stepped on the lower plank it sank some three or four inches lower, his foot was caught under the upper plank, and he was thrown to the sidewalk, by which accident the injury was sustained. A judgment was rendered against the city for $1,200.

There are several assignments of error set forth by the appellant but we think they are all without substantial merit. The first objection is as to the admission of the testimony of witness Hines, who testified to the condition of the walk a week or 10 days after the accident occurred. This, in any event, was only cumulative evidence, and could not have been prejudicial, from the fact that he described the condition of the sidewalk the same as it was described by the other witnesses who saw the walk at or about the time of the accident; and there seems to be no substantial dispute as to the condition of the sidewalk at that place. The respondent himself testified as to exactly how the accident occurred and that his leg went so far in under the upper board that he had to take both of his hands to pull it out after he was hurt. Some objection is also made to the testimony of John Wiley, who testified to having been hurt at identically the same place, and in the same way, some week or 10 days prior to the time when the accident happened to the respondent excepting that his heel had been wedged in between the boards instead of his toes, and the only result was the wrenching of his leg. He, however, testified, before he got through, that he noticed the walk some week or 10 days afterwards, when some little girls were playing upon it,-which was about the time the accident happened to the respondent,-and that it was then in the same condition. Objection is made to the testimony of Wiley and Gottstein in relation to their being hurt at this place prior to this time, but we think that this testimony was simply descriptive of the condition of the walk, and nothing more. At all events, so far as the character of testimony which is objected to on the ground of time is concerned, it was at least material as tending to prove notice to the city of the condition of the sidewalk. The testimony throughout shows that the stringers under this walk were rotten, and that, in any event, the walk was in such a condition that the expiration of a week or two weeks could not possibly make any material difference. Rosenthal testified that he examined the walk in the afternoon of the day on which the accident occurred, and described it substantially as it was described by the other witness, stating that he stepped on the plank, and that it went down in the manner alleged by the...