Eskildsen v. City of Seattle

• Citation: 29 Wash. 583,70 P. 64
• Court: United States State Supreme Court of Washington
• Decision Date: 06 September 1902
• Parties: ESKILDSEN v. CITY OF SEATTLE.

70 P. 64

29 Wash. 583

ESKILDSEN v. CITY OF SEATTLE.

Supreme Court of Washington

September 6, 1902

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

Action by Edwin Eskildsen, by his guardian ad litem, George A Eskildsen, against the city of Seattle. Judgment for plaintiff. Defendant appeals. Affirmed.

Mitchell Gilliam, Wm. Parmerlee, and W. E. Humphrey, for appellant.

E. P. Edsen, John E. Humphries, and Harrison Bostwick, for respondent.

DUNBAR J.

This is an action brought by Edwin Eskildsen, by his guardian ad litem, George A. Eskildsen, to recover for personal injuries alleged to be due to the negligence of the city. The plaintiff at the time of the injury was four years and three months of age. He and his father were walking along Railroad avenue, in the city of Seattle, near the Northern Pacific Depot. The child desired to urinate, and was instructed by his father to go between the cars, where he did go, and where his foot got fastened between the planking and the rail of the car track. The father was unable to extricate the child from this position, and, an engine at that time pushing one of its cars towards the child, the father pulled the child out over the rail, the cars passing over the child's leg cutting it off above the ankle. Upon trial, judgment was rendered in favor of the plaintiff in the sum of $11,000 from which judgment this appeal is taken.

The assignments of error are: (1) The court erred in not granting defendant's motion for nonsuit. (2) In refusing to give instruction No. 1 requested by defendant. (3) In refusing to give instruction No. 6 requested by the defendant. (4) In giving instruction No. 5. (5) In giving instruction No. 15. It is insisted of the first assignment that the nonsuit should have been granted--First, because the city had no notice of the defective condition of the street; and, second even if the city was negligent, its negligence was not the proximate cause of the injury. A perusal of the record convinces us that there was sufficient testimony of the consideration of the jury on the question of notice. It is contended that the father was the active agency in producing the injury of his child, but, outside of the great weight of authority which sustains the rule that the negligence of the parent cannot be imputed to a child, it was held by this court in Roth v. Depot Co., 13 Wash. 525, 43 P. 641, 44 P. 253, 31 L. R. A. 855, that 'the negligence of the parent cannot be imputed to the child in an action brought for the benefit of the child, and not for the benefit of the parent;' and it is almost universally held that a child under five years of age cannot be guilty of contributory negligence in any event. But it is contended that, even if the negligence of the father cannot be imputed to the child, his negligence, and not that of the city, caused the child's injury, and that, assuming the father was not negligent, and that the city was negligent, yet the city would not be liable, because its negligence would not have caused the child any injury if it had not been for the intervening act of the railway company; it not being claimed that the hole in the street in itself injured the child, and that it appeared that he would have escaped injury but for the act of the railway company in passing its cars over him. We think that the great weight of authority on the subject of approximate cause is against the theory contended for by the appellant. The injury received was a reasonable and probable result of the negligence of the defendant, and it was held in Binford v. Johnston, 42 Am. Rep. 508, an Indiana case, that the fact that some agency intervens between the original wrong and the injury does not necessarily bring the case within the rule, or within the maxim 'Causa proxima, et non remota, spectatur.' 'On the contrary,' said the court, 'it is firmly settled that the intervention of a third person, or of other and new direct causes, does not preclude a recovery, if the injury was the natural or probable result of the original wrong;' citing Billman v. Railroad Co., 76 Ind. 166, 40 Am. Rep. 230; Scott v. Shepherd, 2 W. Bl. 892, commonly known as the 'Squib Case.' 'The rule goes so far,' says the court, 'as to hold that the original wrongdoer is responsible, even though the agency of a second wrongdoer intervened;' citing Clark v. Chambers, 7 Cent. Law J. 11; Cooley, Torts, 70; Add. Torts, § 12. In that case two boys purchased of a dealer cartridges for use in a toy pistol. Another boy six years old picked up a toy pistol containing one of the catridges, and discharged it, killing one of the boys who bought the cartridges. It was held that the dealer was liable for the death of the boy killed. It is true that it is against the statute to sell pistol cartridges to minors in that state, but the decision is bottomed on the legal doctrine announced. In City of Joliet v. Shufelt (Ill.) 32 N.E. 969, 18 L. R. A. 750, 36 Am. St. Rep. 453, it was held that a city which has negligently constructed a street is liable for damages received by a person who, without negligence on his part, is thrown from a buggy on account of such defective construction, even though such accident would not have happened had not the harness broken, and the horse run away. The principle involved there is identical with the case in point, because the accident here probably would not have happened had it not been for the intervening cause, namely, the approach of the car. In that case it was said: 'The general doctrine is that it is no defense in actions for negligent injuries that the negligence of third persons, or an inevitable accident, or an inanimate thing, contributed to cause the injury of the plaintiff, if the negligence of the defendant was an efficient cause, without which the injury would not have occurred.' Certainly, in this case the hole in the walk was the efficient cause, without which this child would not have been run over by the car, as shown by the testimony in the case. In support of this doctrine the court cited: Railway Co. v. Shacklet, 105 Ill. 364, 44 Am. Rep. 791; Transit Co. v. Same, 119 Ill. 232, 10 N.E. 896; Machine Co. v. Keifer, 134 Ill. 481, 25 N.E. 799, 10 L. R. A. 696, 23 Am. St. Rep. 688; City of Peoria v. Simpson, 110 Ill. 301, 51 Am. Rep. 683; 16 Am. & Eng. Enc. Law, 440-443, and notes; 2 Thomp. Neg. 1085. In City of Joliet v. Verley, 35 Ill. 58, 85 Am. Dec. 342, it was held that if a plaintiff, while observing due care for his personal safety, was injured by the combined result of an accident and the negligence of a city or village, and without such negligence the injury would not have occurred, the city or...