Jordan v. City of Seattle

• Decision Date: 05 September 1901
• Parties: JORDAN v. CITY OF SEATTLE.
• Court: Washington Supreme Court

66 P. 114

26 Wash. 61

JORDAN v. CITY OF SEATTLE.

Supreme Court of Washington

September 5, 1901

Appeal from superior court, King county; W. R. Bell, Judge.

Action by Margaret Jordan against the city of Seattle. From a judgment in favor of defendant, plaintiff appeals. Reversed.

J. P Ball and I. D. McCutcheon, for appellant.

W. E Humphrey and Edward Von Tobel, for respondent.

WHITE J.

The plaintiff in this action seeks to recover from the defendant for injuries which she alleges she sustained by reason of falling into a hole in the sidewalk in the city of Seattle. The material allegations of the complaint were denied, and the defendant pleaded that, if the plaintiff sustained any injuries in the premises, it was not due to any fault or negligence on the part of the defendant, but was occasioned by the heedlessness, carelessness, and negligence and fault of plaintiff. On the night of October 12, 1899 between 8 and 9 o'clock, the plaintiff and two of her children started to go to the grocery where she traded, at the corner of Main street and Tenth avenue, to provide for their breakfast on the next morning. The plaintiff at the time resided on the east side of Seventh avenue South, near the center of the block. She moved into the house where she was living on August 7, 1899, at which time the sidewalk on Seventh avenue South, near its intersection with Main street a short distance south of the plaintiff's home, was in a bad and broken condition, and continued to grow worse until the day of the injury, and long afterwards. When she and her children left their home on the night of October 12th, they proceeded along the east side of Seventh avenue South towards Main street, which was the direct route to their destination, and the way they had been in the habit of going. A few days before, one of the boards in the walk had been so broken as to leave a hole in the walk at said place. As plaintiff approached this broken place, she cautioned her children to look out, and not fall into the hole, and at the same time she went ahead of them about 10 feet to guide them. As she did so, she steped into the hole, and was thrown violently forward on her hands, and sustained the injuries complained of. The night was dark, and there was no light or other warning of the danger present, and she could not distinguish the hole from the mud. She was about 41 years of age. She knew from the time she first moved into the neighborhood that the sidewalk where she was injured, up to the time of said injury, was torn up, and in a dangerous condition During this time she was well acquainted with the walk, passed over it frequently, almost daily. She knew the location of the defective place in the walk where she was injured, and on the night of the accident she stopped, and cautioned her children about the condition of the walk, and told them it was a dangerous place, walked forward, and fell and received the injury complained of. She fell at the place which she warned the children was a dangerous place, and on account of the darkness was unable to see the exact location of the hole into which she fell. Other witnesses testified that they passed over the walk where the plaintiff was injured almost daily from July 17, 1899, until long after October 12, 1899, during all of which time the walk at the point where the plaintiff was injured was in a bad condition constantly, and grew worse; that a wood yard was kept in that part of the block at the corner of Seventh and Main streets, and that the wood was drawn from the yard to the street out across the sidewalk where the plaintiff fell. One of the plaintiff's children testified that she was with her mother at the time of the injury complained of, and that on approaching the bad place in the walk her mother cautioned herself and her sister who was along to be careful, and not fall into the hole, and that then her mother stepped carefully forward about 10 feet ahead of herself and her sister, and fell into the hole in the walk; that her mother told her when they stopped that it was a dangerous place, and that there was a hole in the walk, and that she fell into the very hole that she had warned them to watch out for; that the night was so dark that the hole could not be seen; that her mother was familiar with the condition of the walk where she was injured, and had been since the 7th day of August, 1899; that her mother had passed over it frequently; that there was a good sidewalk on the opposite side of the street, in good repair, running parallel to the one on which her mother was injured, and that it was only about a half block from where her mother came upon the sidewalk in coming out of the house in which she lived to a crossing which was in good repair that led across to the opposite side of the street to the sidewalk mentioned as running parallel to the one upon which her mother was injured. It was shown that occasionally the men in the wood yard would throw some boards upon the broken place, but in driving over it they came off, and did not remain in place. At the close of the plaintiff's testimony the defendant moved the court for judgment of nonsuit against the plaintiff and in favor of the defendant on the ground that the plaintiff had proven that she was guilty of contributory negligence in going or attempting to go over the walk where she did with knowledge of its condition, when another route was open to her. The court granted this motion, to which exceptions were taken.

This court has said: 'Generally, the question of contributory negligence is for the jury to determine from all the facts and circumstances of the particular case, and it is only in rare cases that the court is justified in withdrawing it from the jury.' McQuillan v. City of Seattle, 10 Wash. 464, 38 P. 1119, 45 Am. St. Rep. 799. Does the case now under consideration fall within the rare exceptions? The respondent claims that it does, because the plaintiff, with full knowledge of the dangerous condition of the sidewalk, and thinking of that condition, and having it well in mind, voluntarily attempted to pass over the dangerous...