Hammock v. City of Tacoma

• Decision Date: 08 December 1906
• Citation: 44 Wash. 623,87 P. 924
• Parties: HAMMOCK v. CITY OF TACOMA.
• Court: Washington Supreme Court

87 P. 924

44 Wash. 623

HAMMOCK v. CITY OF TACOMA.

Supreme Court of Washington

December 8, 1906

Appeal from Superior Court, Pierce County; Thad Huston, Judge.

Action by Amanda Hammock against the city of Tacoma. From a judgment for plaintiff, defendant appeals. Affirmed.

See 82 P. 893.

C. M. Riddell, R. E. Evans, and J. W. Quick, for appellant.

Govnor Teats, for respondent.

FULLERTON J.

The respondent brought this action to recover for personal injuries In her complaint she alleged that on June 12, 1904 while she was walking along one of the sidewalks in the appellant city in the company of her daughter, the daughter stepped upon a broken board in the walk, or a board which broke under her weight, causing one end of it to raise up and that she tripped over the raised end of the board and fell to the walk, which fall caused the injuries of which she complains. The city took issue upon the allegation of the complaint, and a trial was had, which resulted in a verdict and judgment in her favor. The city appeals.

The first contention on the part of the appellant is that the evidence was insufficient to justify the verdict; the precise objection being that there was no evidence tending to show that the city had knowledge prior to the accident, either actual or constructive, of the particular defect that caused the injury. The evidence relied upon by the respondent to show notice on the part of the city was the testimony of certain witnesses who resided in the vicinity of the place of the accident. These witnesses testified that the walk in front of the block where the accident occurred had been down for a number of years, and been out of repair for more than a year prior to the accident; that the stringers supporting the walk were decayed, and in some places entirely gone; that the ends of the boards forming the walk were in many places rotted off, leaving them loose so that they would give way at one end and tilt at the other; and, generally that the walk was unsafe to travel upon. None of them, however, were able to testify that they had noticed the condition of the walk at the precise place of the injury, and the respondent testified, and the jury found, that the defect at that place was not so apparent as to be observed by the exercise of ordinary care and caution. It is on this testimony and finding that the appellant bases its contention. It argues that notice of defects in the immediate vicinity of a particular place is not notice of defects at that place; and that if the defect causing the injury was not observable to the respondent by the exercise of ordinary care and caution, it could not be observable to the city officers by the exercise of the same care, and hence the city could not be chargeable with constructive notice under the testimony. But the fallacy of this reasoning lies in the assumption that the degree of care is the same in each instance. A person having a lawful right to travel upon a sidewalk has the right to assume that the walk is in ordinary good repair, and that there is no latent defect which may cause an injury. He is guilty of contributory negligence, therefore, only where he is injured by some patent defect which he could have observed and avoided by the exercise of ordinary care, or by some defect he knows exists in the walk whether latent or patent which he did not take ordinary care to avoid. But with the city it is different. It is charged with the duty of keeping its walks in ordinary repair. It must take notice that time and use will destroy sidewalks no matter how carefully constructed, or how safe and secure they may have been when originally constructed. It must, not only examine the surface, but the supports, of the walks whenever it has reasonable cause to believe that these supports are getting out of repair. In a word, it must exercise that degree of care that common sense declares to be necessary in order to keep its walks reasonably safe for ordinary use. Tested by these rules, it is apparent that the respondent did not have to prove, in order to charge the city with notice, that the particular plank that caused her injury was so obviously defective that it could have been discovered by the mere observation that a traveler along the walk is required to exercise to avoid injury. On the contrary, proof that the walk had been constructed for a number of years, and that it had been for more than a year out of repair and unsafe in places on each side of and near to the place of the accident, was proof sufficient to charge the city with notice of the condition of the walk at the place of the accident; and being charged with such notice, its failure to repair it, or warn against its use, was such negligence as would render it liable to any one injured by reason of its defective condition who was not himself guilty of negligence which contributed to the injury.

It is next assigned that certain...