Glasgo v. City of Spokane

• Citation: 139 Wash. 75,245 P. 406
• Decision Date: 27 April 1926
• Docket Number: 19690.
• Parties: GLASGO v. CITY OF SPOKANE.
• Court: United States State Supreme Court of Washington

245 P. 406

139 Wash. 75

GLASGO v. CITY OF SPOKANE.

No. 19690.

Supreme Court of Washington

April 27, 1926

Department 2.

Appeal from Superior Court, Spokane County; Lindsley, Judge.

Action by Lillie Glasgo against the City of Spokane. From a judgment of dismissal, plaintiff appeals. Reversed and remanded, with directions.

Mackintosh J., dissenting.

Zent &amp Lovell, of Spokane, for appellant.

Alex M Winston and J. M. Geraghty, both of Spokane, for respondent.

PARKER J.

The plaintiff, Mrs. Glasgo, seeks recovery of damages for personal injuries suffered by her in slipping and falling upon a sidewalk of the defendant city, claimed to have been the result of the city's negligence in failing to clear the sidewalk of show and ice. The case proceeded to trial in the superior court for Spokane county sitting with a jury. At the conclusion of the evidence introduced in behalf of Mrs Glasgo, counsel for the city moved for judgment of dismissal upon the ground 'that it appears affirmatively from all the evidence that the defendant should prevail.' This motion was sustained, the case withdrawn from the jury, and a judgment of dismissal awarded to the city as a matter of law. From this disposition of the case, Mrs. Glasgo has appealed to this court.

We do not understand counsel for the city to seriously contend that there was not sufficient evidence to carry the case to the jury upon the question of the city's negligence in allowing the sidewalk to become in the condition it was at the time Mrs. Glasgo was injured. The record of the case does not indicate any such contention in the trial court. Indeed, the motion itself points rather to the question of Mrs. Glasgo's contributory negligence than to the question of the city's negligence. The trial judge's memorandum decision plainly indicates his opinion as being that Mrs. Glasgo was not entitled to recover solely because of her contributory negligence.

Mrs. Glasgo testified touching the condition of the walk, her knowledge of such condition, and her appreciation of danger in passing over it, in part, as follows:

'Q. What was the condition of the sidewalk at that place at that time? A. Well; it had snowed and it hadn't been cleaned off, and it had been walked on, and it had rained and snowed again, and it was rough in places.

'Q. That is, you mean the snow or the ice had piled on the sidewalk in various places? A. Yes.

'Q. And how high were these little piles of snow and ice in various places? A. Well; perhaps six inches. * * *

'Q. State what happened. A Well; I was walking along, and the walk was very slippery; I was trying to get along; I was going to the car to go to work, and I slipped and broke my arm. * * *

'Q. How long had this condition existed on the sidewalk prior to your injury? A. Well; perhaps three weeks. It was for some time. * * *

'Q. Now, you say you had been over this walk many times before? A. Yes.

'Q. And you had observed that this walk there had not been cleaned off that winter? A. Yes; it hand't. * * *

'Q. And there was about six inches of snow upon it, in where these bumps and ridges were? A. I think it was about six inches. * * *

'Q. And this snow, was that dry snow, or was it wet snow at that time? A. It was frozen then; it couldn't be wet.

'Q. In other words, it had been melting and freezing; is that correct? A. Well; it had snowed, and then it would thaw some, and then it snowed again, and that was walked on each day, and it was rough in places, as it was walked over, and then it would be frozen again. At this time it was frozen.

'Q. You had observed it every day? A. Well; I had passed there twice each day, going in the morning and coming back in the evening. * * *

'Q. Did it appear to you to be dangerous to go upon? A. Yes; it was dangerous, but I had to go that way.

'Q. You realized it was dangerous that morning? A. Yes.

'Q. Did you look across the street to see if there was any other way you could get along to avoid going by this dangerous place? A. No; that was the way I went all the time.'

This is, in substance, the whole of the evidence touching the question of Mrs. Glasgo's knowledge of the condition of the walk and her appreciation of whatever danger there may have been to one passing over it. One other witness testified as to the condition of the walk in substance the same as Mrs. Glasgo testified on that subject. There is practically no evidence in the record indicating that there was or was not a convenient safer way for Mrs. Glasgo to go upon her mission, that is, to and from her work, at that time. It is not very clear from the evidence, though we think it inferable therefrom, that the walk in question is in a fairly densely populated residence portion of the city. In any event it seems to have been a walk much used, even in its then condition.

Does this evidence so conclusively show that Mrs. Glasgo was guilty of contributory negligence in attempting to pass over the walk in its then condition that the court was warranted in so deciding as a matter of law and withdrawing the case from the jury? It may be conceded that these facts furnish very substantial ground for arguing to the jury as a matter of fact that Mrs. Glasgo was guilty of contributory negligence. But we feel constrained to hold that it cannot be so decided by the court as a matter of law. In the text of 13 R. C. L. 475, we read:

'A person who in the lawful use of a highway meets with an obstacle, or defect therein, may yet proceed if it is consistent with reasonable care so to do, even though he thereby incurs some risk, and the fact that he sees or knows of the obstruction or defect and knows its dangerous character, is not conclusive proof that he was negligent in attempting to pass it, and does not preclude a recovery for injuries sustained by him in the attempt, provided he exercised due care.'

This same view of the law is expressed in 6 McQuillin, Municipal Corporations,§ 2826, as follows:

'It is now settled beyond dispute that mere knowledge of a defect in a street, at the time of or before using a street, is not per se contributory negligence. The injured party is not negligent unless he knew both of the defect and also of the danger, since there must be knowledge plus want of ordinary care to constitute contributory negligence.'

In Smith v. Spokane, 47 P. 888, 16 Wash. 403, the question of contributory negligence under circumstances somewhat like those here involved was considered. Judge Anders, speaking for the court in that case, said: 'It appears from the testimony of the plaintiff that, at the time the accident happened, she was going to the Hotel Spokane, situated on the corner of Stevens and First streets, with the view of attending a reception which she was informed would there be given in honor of J. L. Wilson; that she was not walking rapidly and was careful how she walked--as careful as any person would ordinarily be when walking along the street; that she had safely passed over this sidewalk in the daytime five or six times during the three preceding weeks, the last time about a week before the accident, and that the ice and snow upon the sidewalk at the time she was injured seemed to be in about the same condition, so far as she was able to observe, as it was when she saw it the week before, and at other times. It is not clear from her testimony that the plaintiff noticed the real condition of this particular part of the sidewalk before she stepped upon it, but she does say that she observed its condition after she fell, and especially after she was assisted into a sleigh which was standing close to the edge of the sidewalk at the time. There was as electric arc light at the Sprague street crossing and another about a block away, which afforded sufficient light for the plaintiff to see the condition of the street with more or less distinctness.

'Upon this state of facts did the court err in denying the defendant's motions? In other words, would the trial court have been justified in saying, as matter of law, as it was in effect requested, that the plaintiff was guilty of contributory negligence, and therefore not entitled to recover in this action? We think this question must be answered in the negative. * * *

'We think that, upon the undisputed facts of this case, candid and intelligent men might reasonably differ as to whether the plaintiff was or was not in the exercise of ordinary care and prudence at the time of the accident; and it therefore follows that the court committed no error in submitting the case to the jury.'

It seems to us these...