Kelly v. City of Spokane

• Decision Date: 28 December 1914
• Docket Number: 12187.
• Parties: KELLY v. CITY OF SPOKANE.
• Court: Washington Supreme Court

145 P. 57

83 Wash. 55

KELLY v. CITY OF SPOKANE.

No. 12187.

Supreme Court of Washington

December 28, 1914

Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by Elizabeth Kelly against the City of Spokane. From a judgment for plaintiff, defendant appeals. Affirmed.

H. M. Stephens, Wm. E. Richardson, Ernest E Sargeant, and Dale D. Drain, all of Spokane, for appellant.

Scott &amp Campbell, of Spokane, for respondent.

GOSE J.

This action was brought to recover compensation for personal injuries sustained by the plaintiff. She claims that she stepped into a hole in a sidewalk in one of the business streets of the defendant city, causing her to fall in such a manner as to inflict upon her serious bodily injuries. The jury accepted her view of the case, and its verdict was made effective by a judgment. This appeal followed.

The material facts fall within a very narrow compass. The respondent said that she was traveling north on the west side of Post street, a business street in the city of Spokane that in crossing the track of the Northern Pacific Railway Company she kept close to the west margin of the street in order to avoid the sweep of a crossing guard, which she feared might be suddenly lowered; that at a point a few feet north of the crossing and a few inches from the inside of the walk she stepped into a hole in the brick walk about 10 inches by 12 inches in dimensions, and fell and was seriously injured. She said she was seeking to avoid two elements of danger, viz., the sweep of the crossing guard in event it should be suddenly let down, and passing engines, and that, with her attention momentarily diverted by these thoughts, she stepped into the hold without observing its presence. She also said that the hole extended to within 2 or 3 inches of the building, and that, whilst she had before traveled the walk, she had not observed the hole. Another witness said that the hold had been there for a considerable period of time before the plaintiff met her injury. All the witnesses agree that the hole was about 10 inches by 12 inches in dimensions, and that it extended to within a few inches of the building. The walk was made of bricks 5 inches in width, 10 inches in length, and 2 1/2 inches in thickness. There was a hiatus in the walk of probably two bricks. The evidence does not show whether the bricks were left out in the beginning or were later removed. The significant fact is that, under all the evidence, the gap was there.

At the close of the respondent's evidence the appellant challenged its sufficiency. The challenge being denied, it then sought to introduce a photograph in evidence. This was rejected, whereupon plaintiff again challenged the sufficiency of the evidence and rested its case. The errors claimed are: (1) The rejection of the photograph; and (2) the denial of the challenge to the sufficiency of the respondent's evidence.

The photograph was rejected because the court was evidently of the opinion that it had not been sufficiently identified that is, because it was not shown to correctly photograph the hole with respect to its proximity to the adjacent building. The respondent's witnesses on...