Lasityr v. City of Olympia

• Decision Date: 20 January 1911
• Parties: LASITYR v. CITY OF OLYMPIA.
• Court: Washington Supreme Court

112 P. 752

61 Wash. 651

LASITYR v. CITY OF OLYMPIA.

Supreme Court of Washington

January 20, 1911

Department 2.

Appeal from Superior Court, Thurston County; John R. Mitchell Judge.

Action by James Lasityr against the City of Olympia. Judgment for the plaintiff, and the defendant appeals. Affirmed.

In an action for injuries alleged to have been received by falling over an obstruction across a newly constructed sidewalk of a city, whether plaintiff should have discovered such obstruction held on the evidence a question for the jury.

George R. Bigelow and G. C. Israel, for appellant.

RUDKIN J.

This was an action to recover damages for personal injuries. On the 8th day of October, 1908, contractors were engaged in laying a cement sidewalk on the south side of West Fourth street, in the city of Olympia, between Main street and Columbia street. The walk in question was laid by permission of the city, but under a private contract with the abutting property owner. The walk was completed, or at least unobstructed, from Main street to a point about 30 feet east of Columbia street. At the latter point three plank, one foot in width and two inches in thickness, were laid from the entrance to a store building, a foot or eighteen inches above the walk, to the curbing at the outer edge of the walk, for the purpose of giving access to and from the building without walking over the green cement. Immediately west of these plank fine wire netting about three feet in height extended from the store building along the edge of the plank to the outer edge of the walk, and thence along the curbing to and around the corner at Columbia street, to protect the newly constructed walk until it should season or harden. There were no barriers across the walk other than those mentioned, and no lights or other warnings to admonish or protect foot passengers, except the street lights in the vicinity. There was an arc light at the intersection of Columbia and West Fourth streets about 70 feet distant from the place of the accident, another arc light at the intersection of Main and Fourth streets about 270 feet distant from the place of the accident, and certain other lights on the opposite side of the street in front of business houses. About 8 o'clock on the evening of the above date the plaintiff left his home to visit a lodgeroom on Columbia street west of the obstruction in question. In so doing he passed westerly along the sidewalk on the south side of Fourth street, and tripped or fell over the wire netting stretched across the sidewalk in front of the store building above described, causing the injury for which a recovery was here sought. From a judgment in favor of the plaintiff the city has appealed.

In addition to denials and a plea of contributory negligence the answer as a second affirmative defense alleged that prior to the accident complained of the appellant had closed West Fourth street between Main street and Columbia street to public travel, and had caused notice thereof to be posted in public places in the vicinity of the closed portions of the street, and that the respondent disregarded said notices, and was a trespasser in the street at the time he met with the accident complained of. This latter defense was not denied by reply, and by reason of that fact the appellant at the commencement of the trial moved for judgment on the pleadings. The first error assigned is based on a denial of this motion. The case was twice tried in the court below, and at each trial the court ruled that this defense amounted to nothing more than a denial of the allegation in the complaint to the effect that the respondent had no notice of the dangerous and unsafe condition of the sidewalk. Waiving the question whether this ruling was technically correct when made, the case has been fully tried out on the merits, no competent testimony was rejected, and no incompetent testimony received because of the state of the pleadings, and, if error was committed in that regard, it was error without prejudice to the substantial rights of the parties, and must be disregarded here.

The next assignment is based on the denial of a challenge for cause interposed to one of the jurors on the ground that he was not a taxpayer of the state. Section 94, Rem. & Bal. Code, provides that: 'No person shall be competent to serve as a juror in the superior courts of the state unless he be (1) an elector and taxpayer of the state of Washington. * * *' We are inclined to agree with the respondent that a taxpayer, within the meaning of this statute, is a person owning property in the state, subject to taxation and on which he regularly pays taxes ( State ex rel. Sutton v. Fasse [Mo. App.] 71 S.W. 745), but, conceding such to be the rule, the appellant merely showed that the juror in question was not a taxpayer of Thurston county, and this was not sufficient to disqualify. State v. Jahns, just decided.

The next error assigned is based on the denial of a motion for a nonsuit interposed at the close of the respondent's testimony, on the ground that the second affirmative defense was not denied by reply, and on the further ground that the respondent was guilty of contributory negligence. We have already disposed of the first ground of the motion under the first assignment of error, and the second ground is equally without merit. The obstruction in the street which caused the injury in this case was the wire netting, and, unless it could be seen, there was nothing whatever to give notice or warning of its presence. The plank walk leading into the storeroom was no barrier, because a foot passenger could readily step over it, as the respondent did in this case, at the outer edge of the walk where the plank were but a few inches high. If the wire netting could not be seen--and there was ample testimony tending to show that it could not--it was a trap for the unwary, and its maintenance was culpable negligence on the part of the city. Whether the respondent had notice of its presence or should have discovered it upon his approach were clearly questions of fact...