Horton v. City of Seattle

• Decision Date: 27 May 1909
• Citation: 101 P. 1091,53 Wash. 316
• Parties: HORTON v. CITY OF SEATTLE.
• Court: Washington Supreme Court

101 P. 1091

53 Wash. 316

HORTON v. CITY OF SEATTLE.

Supreme Court of Washington

May 27, 1909

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by Minnie Horton against the City of Seattle. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Scott Calhoun and James E. Bradford, for appellant.

Blaine Tucker & Hyland and Robert C. Saunders, for respondent.

MOUNT J.

Respondent brought this action to recover for personal injuries alleged to have occurred by reason of falling into a hole in a public street in West Seattle. The cause was tried to a court and jury, and resulted in a verdict in favor of the plaintiff for $2,500. The defendant appeals from a judgment entered on the verdict.

Many errors are assigned, which are not necessary to be mentioned specifically. We shall notice those only which appellant seems to rely upon, and which may arise upon a new trial. Appellant contends that the claim for damages, which was filed with the city under section 29, art. 4, of the city charter is insufficient, because (1) the claim does not accurately locate and describe the defect which caused the injury; and (2) because the evidence shows that the respondent was a married woman, and the claim was verified and filed by her without her husband joining therein. The claim filed with the city recites that 'on the evening of the 11th day of November, 1907, at the hour of about 6:30 or 7:15 o'clock, the night being very dark, and that portion of Railroad avenue lying in front of the new ferry slip was unlighted, and the trestle work in said street at said point was open, excepting for the ties of the Northern Pacific Railway Company and the Seattle Electric Company, and between its ties an opening was left, and no railings surrounded the said open place, and the same could not be seen by any person, and the street had been in that condition, and had remained for more than six months and the same was known to the officials of the city,' etc., petitioner went from the new ferry slip 'to the street known as Railroad avenue in West Seattle, and, without fault on her part, fell into an opening, and fell a distance of 10 or 12 feet to the tide flats below.' This claim locates the defect on Railroad avenue in front of the new ferry slip. It describes the hole there in the street. This was clearly sufficient, under the rule as stated in Hammock v. Tacoma, 40 Wash. 539, 82 P. 893, and Mulligan v. Seattle, 42 Wash. 264, 84 P. 721, where we held, in substance, that a reasonable compliance with the charter, and a description sufficient to identify the place and enable one to find it, is all that is required. It is true the respondent does not say definitely that she fell into the hole described, but she does say that she went from the new ferry slip to the street known as Railroad avenue and fell into an opening. It is clear that she meant the same opening she had described above, The claim was therefore sufficient. Her evidence is definite upon that point.

It is next alleged that the claim is invalid because the respondent was a married woman, and the claim was not signed by her husband. We held, in Davis v. Seattle, 37 Wash. 223, 79 P. 784, that a claim of this kind, filed by a married woman in her own name, was sufficient. The evidence in this case shows that the respondent is, and has been, living separate and apart from her husband. Under these conditions she was authorized, by subdivision 3, § 4826, Ballinger's Ann. Codes & St. (Pierce's Code, § 254, subd. 3), to maintain the action alone.

Appellant next urges that the court erred in excluding certain cross-examination of respondent's witnesses. A reading of the evidence convinces us that the court did not abuse its discretion in these matters. We deem it unnecessary to set out the facts or discuss these points more particularly.

The respondent was permitted to testify, in substance, over appellant's objections, that her eyesight was affected by the injury she received, and also that, after she recovered from the external effects of her injuries, she suffered, and still suffers, from excessive menstruation. She testified on cross-examination that she knew of the injury to her eyesight within 5 days after the accident. The appellant contends that the court erred in submitting these elements of damages to the jury. This contention must be sustained. The claim filed with the city described the injuries of the respondent as follows: 'She was greatly bruised and injured, and her whole right side was paralyzed, and she...