Hewitt v. City of Seattle

• Decision Date: 10 March 1911
• Citation: 113 P. 1084,62 Wash. 377
• Parties: HEWITT v. CITY OF SEATTLE.
• Court: Washington Supreme Court

113 P. 1084

62 Wash. 377

HEWITT v. CITY OF SEATTLE.

Supreme Court of Washington

March 10, 1911

Department 1. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Action by George E. Hewitt against the City of Seattle. From a judgment, for plaintiff, defendant appeals. Affirmed.

Scott Calhoun and James E. Bradford, for appellant.

Hughes McMicken, Dovell & Ramsey, for respondent.

DUNBAR C.J.

In the afternoon of October 2, 1908, while the respondent was crossing Third avenue, one of the main prominent thoroughfares in the city of Seattle, near its intersection with James street, he was run over by an automobile driven by one Maloney, who was superintendent of the street department of the city of Seattle, and received the injuries of which he complains. At the time of the accident Maloney was in the performance of his duty as such superintendent. In his complaint, after stating the facts, respondent alleges negligence on the part of the city through its agent Maloney, and that the automobile was being driven at an unlawful rate of speed, and sues for damages. Verdict was rendered for $1,500, judgment was entered thereon, and appeal followed.

We shall not undertake to discuss seriatim the assignments in this case. They are numerous. The first contention is that the city is not liable in any event for the negligence of the superintendent of streets. This is a must discussed question. It has been settled by a great weight of authority that the duties imposed upon municipal corporations are dual; that one is of that kind which arises from the grant of a special power in the exercise of which a municipality is as a legal individual, and the other is of that kind which arises or is implied from the use of political rights under the general law in the exercise of which it is as a sovereign. The appellant cites many cases to support its contention that the city should not respond to damages in any event, and that in the construction and keeping in order of its streets it was acting in a governmental capacity, and therefore not liable to a suit for damages. Speaking on this question, it is said on page 1280 of Dillon, Mun. Corp. (4th Ed.), in discussing the liability of cities concerning bridges, sidewalks, and streets, repairing the same, and keeping them in safe condition: 'This duty or burden must appear, upon a fair view of the charter or statutes, to be imposed or rest upon the municipal corporation, as such, and not upon it as an agency of the state, or upon its officers as independent public officers. This, however, in general appears sufficiently where the municipality sought to be made liable exists under a special charter or general act which confers upon it peculiar powers and privileges as respects streets, their control and improvement, not possessed throughout the state at large under its general enactment concerning ways.' And it is said by Shearman &amp Redfield, Law of Negligence, § 289: 'With few exceptions, the courts of all the states agree that, as at common law, no civil liability rests upon counties and other quasi corporations, for neglect to keep their highways in a reasonable state of repair, unless such liability is expressly imposed by statute. But that in respect of cities, towns, and villages, incorporated either by special charter, or under a general statute, the principle is firmly established, by the decisions of the federal courts, and by those of all the state courts where the question has been properly open for discussion, except those mentioned below, that such corporations, where the statute grants them the control of their streets, coupled with powers to raise means to maintain them, are bound to exercise ordinary care and diligence to see that they are reasonably safe for travel; that this duty is not a public duty owing to the public alone, but a private corporate duty, which (when not expressly imposed) is necessarily implied from such a grant of power; and, moreover, that the Legislature is deemed to have intended by the grant to impose a liability, coextensive with the duty, in favor of any person specially injured by a wrongful omission to perform, or a negligent performance of such duty.' Outside of the overwhelming weight of authority to this effect, this court has uniformly maintained that doctrine. In Sutton v. Snohomish, 11 Wash. 24, 39 P. 273, 48 Am. St. Rep. 847, we decided that the duty of a city to keep streets in repair was not a governmental but a ministerial duty, and for a breach thereof an action will lie in favor of a person injured as a result of such negligence. In the course of the opinion it was said: 'There is undoubtedly a want of harmony among the decisions of the courts upon this question; but we believe the decided weight of authority, as well as sound reason, is in favor of the view above expressed'--citing many leading cases to sustain the announcement. This case was followed with approbation in Saylor v. Montesano, 11 Wash. 328, 39 P. 653; Lorence v. City of Ellensburgh, 13 Wash. 341, 43 P. 20, 52 Am. St. Rep. 42; Mischke v. City of Seattle, 26 Wash. 616, 67 P. 357; Brabon v. City of Seattle, 29 Wash. 6, 69 P. 365; Prather v. City of Spokane, 29 Wash. 549, 70 P. 55, 59 L. R. A. 346, 92 Am. St. Rep. 923; Shearer v. Town of Buckley, 31 Wash. 370, 72 P. 76; and the latest expression of this court on that subject announcing the same view is Hayes v. City of Vancouver, 112 P. 498. So that, in view of the uniform decisions of this court on that question, we do not feel called upon to again enter into a discussion of the principles involved.

It is however, additionally contended by the appellant that, conceding the doctrine that cities are responsible for the safe condition of the streets, such implied liability is limited to structural defects or obstructions thereon, and does not reach to damages that flow from operations of any kind upon the street; and many cases are cited to sustain this distinction. But we have been unable from a perusal of those cases to determine that they are in point. In note to Dudley v. Flemingsburg, 1 Am. & Eng. Ann. Cases, 960, which is cited by the appellant, it is said: 'The improper condition of a street or highway which gives rise to municipal liability therefor must be some inert matter incumbering the highway or some structural defect therein. An improper or unlawful use of the highways by persons, animals, vehicles, engines, or objects, while movable or actually being moved by human will or direction, and neither fixed nor stationary in one position within the highway, does not render a municipality liable.' A superficial interpretation of this announcement might seem to bear out the appellant's contention. But an examination of the cases cited shows that the question presented in this case was not the question which was passed upon by the courts in the case cited in the note. In those cases the negligence alleged was not the negligence of the city in doing the thing which was the cause of the injury, but negligence of the city in permitting some one over whom the city had no control to act negligently. The first case cited by the author under the note mentioned is Faulkner v. Aurora, 85 Ind. 130, 44 Am. Rep. 1. That was where an ordinance had been adopted by the city prohibiting coasting upon the streets, and a traveler was injured by coming in contact with some one who was indulging in the sport of coasting, but not any one that was in any sense or manner an agent of the city or authorized to act...