James v. City of Seattle

• Decision Date: 07 May 1912
• Court: Washington Supreme Court
• Parties: JAMES et ux. v. CITY OF SEATTLE.

123 P. 472

68 Wash. 359

JAMES et ux. v. CITY OF SEATTLE.

Supreme Court of Washington

May 7, 1912

Department 2. Appeal from Superior Court, King County; J. T. Ronald Judge.

Action by H. E. James and wife against the City of Seattle. From a judgment for plaintiffs, defendant appeals. Affirmed.

James E. Bradford and C. B. White, both of Seattle, for appellant.

Reynolds Ballinger & Hutson, of Seattle, for respondents.

FULLERTON J.

Virginia street, in the city of Seattle, for some distance westerly from its junction with Westlake avenue, is unimproved. At one time a sidewalk was constructed along the north side of the street, but this had been suffered to become broken and decayed, and was entirely destroyed where it passed in front of the alleyway running north and south through the block lying on the north side of street between Sixth and Seventh avenues. The alleyway was much used by teamsters and became soft and muddy at times during the wet season of the year. To enable foot passengers to cross over it when it that condition, a long plank was laid across it. This plank was not fastened in any manner, and was probably left in that condition so that it might be more readily laid to one side by teamsters who desired to pass into the alley. The respondent Annie James undertook to pass over the plank on the evening of March 1, 1910. As she stepped upon the plank it turned under her foot, causing her to fall backwards down a short flight of steps forming a part of the walk leading up to the alleyway. She was injured by the fall and recovered against the city therefor in the court below. The city has appealed.

The court permitted a witness to testify over the objection of the appellant that a street sweeper employed by the city had occasionally brushed mud and dirt off the plank from which the respondent received her fall. It is argued that this evidence was introduced for the purpose of proving that the city recognized this loose plank as a part of the walk, and an obligation on its part to keep the same in repair; that such proofs were not competent for that purpose, as a mere employé of the city has no authority to bind the city by his acts. But the reason assigned is not sufficient to exclude the evidence. An employé of a city, like the employé of an individual person or a private corporation, is presumed to act within the instructions of the person employing him. Hence, if a street sweeper assumes to sweep certain streets, it will be presumed, in the absence of a contrary showing, that he is acting under the direction of his employér. His acts therefore are some evidence that his employer had assumed jurisdiction over the swept streets, and recognized them as a part of the public highways within its jurisdiction. The evidence may not be very persuasive of the fact, but its competency does not depend upon its persuasive force. The city had raised an issue on the question of its liability to keep this particular street and sidewalk in reasonable repair, and this evidence was competent on that question.

The section of the charter of the city of Seattle requiring claims against the city to be presented to the city council provides that all claims for damages 'shall be sworn to by the claimant.' The claim presented in the present case, although made in the name of both of the respondents was sworn to by the respondent Annie James. It is contended that this is insufficient; that the...