Larsen v. City of Sedro-Woolley

• Decision Date: 30 March 1908
• Citation: 94 P. 938,49 Wash. 134
• Court: Washington Supreme Court
• Parties: LARSEN et ux. v. CITY OF SEDRO-WOOLLEY.

94 P. 938

49 Wash. 134

LARSEN et ux. v. CITY OF SEDRO-WOOLLEY.

Supreme Court of Washington

March 30, 1908

Appeal from Superior Court, Skagit County; Geo. A. Joiner, Judge.

Action by A. J. Larsen and wife against the city of Sedro-Woolley. Judgment for plaintiffs, and defendant appeals. Affirmed.

G. M. Davidson, H. D. Cooley, and Wilbra Coleman for appellant.

Smith &amp Brawley, for respondents.

HADLEY C.J.

This is an action against the city of Sedro-Woolley to recover damages for personal injuries alleged to have been received upon a street in said city. The action was brought by A. J Larsen and Petricka G. Larsen, as husband and wife, but the injuries were sustained by the wife, Petricka G. Larsen. They allege in their complaint that Murdock street in said city is one of the public thoroughfares thereof, and that along the west side of the street a sidewalk has been constructed as a part of the street, both sidewalk and street having at all times been generally used by the public; that one Shrewsbury was engaged in the operation of a planing and wood-working mill on land lying on the west side of said street and abutting thereon, the building in which the machinery was operated being so constructed that it was adjacent to the sidewalk; that for a period of about two years prior to the accident sustained by Mrs. Larsen Shrewsbury, in conducting the business of the mill, was in the habit of running lumber and timber through an opening in the wall of the building, and allowing the same to drop on the sidewalk, and to pile up there in such a manner as to render the street and sidewalk dangerous to public travel. It is alleged that the city not only had actual notice of this condition but that through its proper officers it permitted the condition to continue over the protests of numerous persons, including the plaintiffs. It is averred that, as Mrs. Larsen was passing along the street, she was compelled to leave the sidewalk and pass between the lumber pile thereon and lumber piled in the street; that while she was passing between said piles of lumber, using due care and caution, she was tripped by a piece of lumber projecting from the piles, and was violently thrown against the ground, whereby she received her injuries. The city denies the material allegations of the complaint, and avers contributory negligence on the part of Mrs. Larsen. The cause was tried before a jury, and a verdict was returned in favor of the plaintiffs in the sum of $1,650. The city moved for a new trial, which was denied, and judgment was thereupon entered for the amount of the verdict. The city has appealed from the judgment.

The appellant assigns as error that the court denied its motion for nonsuit, and also its challenge to the legal sufficiency of the evidence at the close of all the testimony. It is argued that the evidence did not show any negligence on the part of appellant. The first consideration is whether there was sufficient evidence for submission to the jury bearing upon the question of the city's negligence. This involves the condition of the street at the time and place of the accident. There was ample testimony for the jury to the effect that the street and sidewalk were much obstructed by lumber at that place, and that such a condition in a general, changing way had continued for a long time, practically two years prior to the accident. The evidence as to the length of time this general condition had continued there was sufficient for submission to the jury upon the question of constructive notice to the city, and there was, furthermore, direct and positive testimony of actual notice. The street was one which the city had assumed to improve and put in condition for travel at that place. The city was therefore under the legal duty to see that the street was under all ordinary circumstances kept in a reasonably safe condition for public travel. The evidence was sufficient to raise the question of fact for the jury to determine whether the street was in such condition, and whether there was negligence in the said particular.

It is furthermore, urged that the evidence shows the injuries to be due to Mrs. Larsen's own contributory negligence. We have repeatedly held that this subject is ordinarily for the jury, and we do not think the evidence in this case is such as to take it out of the general rule. Appellant argues, however, that contributory negligence appeared as a matter of law, for the reason that Mrs. Larsen was upon the park strip of the street, between the curbing and sidewalk, when she received her injuries; it being contended in effect that she had not the right to go there. The park strip was within and was a part of the street. There was evidence to the effect that lumber was so placed from an opening in the wall of the mill and reaching across the entire width of the widewalk that Mrs. Larsen could not pass along the sidewalk; that lumber was also piled upon the adjacent park strip and further out into the traveled part of the street; that there was a small space between the lumber upon the sidewalk and that upon the park strip through which she was attempting to pass when the projecting timber caused her to...