Laurie v. City of Ballard

• Citation: 25 Wash. 127,64 P. 906
• Parties: LAURIE et al. v. CITY OF BALLARD.
• Decision Date: 03 May 1901
• Court: United States State Supreme Court of Washington

64 P. 906

25 Wash. 127

LAURIE et al. v. CITY OF BALLARD.

Supreme Court of Washington

May 3, 1901

Appeal from superior court, King county; E. D. Benson, Judge.

Action by Laura M. Laurie and her husband against the city of Ballard. From a judgment for plaintiffs, defendant appeals. Affirmed.

I. L Hyland and Piles, Donworth & Howe, for appellant.

Davis &amp Gilmore and Ballington, Ronald & Battle, for respondents.

PER CURIAM.

Respondents are husband and wife, and as such they jointly instituted this suit to recover on account of injuries alleged to have been received by the wife, Laura M. Laurie. On the 10th day of November, 1898, respondents resided in the city of Ballard, and about half past 8 o'clock in the evening of said day Mrs. Laurie, while walking over the sidewalk along Tallman avenue, a public street in said city stepped through a hole in the sidewalk, and fell in such a manner that it is claimed she received therefrom serious and probably permanent injuries. The hole had been made by the breaking of a plank in the sidewalk. The evening was dark and there were no guards or signals at or near said broken plank and hole. It is claimed that Mrs. Laurie fell down upon and against the sidewalk with great violence, and that by reason thereof her left foot was sprained, and her left hip bruised; that her left eye and ear were bruised, and permanently injured; and that she was seriously and permanently injured internally. Mrs. Laurie, for some time prior to said accident had been engaged in the management of an employment agency in the city of Ballard. It is claimed that respondents are damaged in the sum of $600 for the loss of Mrs. Laurie's time and labor, $810 for the husband's time and that of other nurses in nursing and caring for the wife, $500 for medicines and medical attendance, together with general damages for injuries in body and mind; making a total of $15,000, for which sum respondents ask judgment. A trial was had before a jury, and, when the evidence had all been introduced, appellant's counsel challenged the sufficiency of the evidence, and moved the court that the case be withdrawn from the jury, and judgment rendered for appellant. The challenge and motion were denied, and the court thereupon submitted the case to the jury under instructions. A verdict was returned in favor of respondents in the sum of $1,887.50, and judgment was thereafter rendered against appellant for that sum. A new trial was not asked in the lower court, and it is not asked here. Appellant assigns as error: (1) The refusal of the court to sustain its challenge to the sufficiency of the evidence, and its motion that the case be withdrawn from the jury, and judgment rendered for the defendant; (2) the refusal of the court to instruct the jury to render a verdict for defendant, as requested by the defendant; (3) the ruling of the court during the trial to the effect that testimony as to the existence of other holes in the sidewalk in that vicinity was admissible as evidence against the defendant.

We will first discuss the last assignment of error, inasmuch as it challenges the competency of much evidence that went to the jury. It is urged by appellant that any evidence concerning the condition of the sidewalk at any point other than the one where the injury was received is totally inadmissible. Upon the other hand, the respondents urge that it is proper to admit testimony of other defects of long standing and in close proximity to show notice to the city of the general defective conditon of the street, and as having some tendency to show notice of the particular defect involved. Under this theory the court permitted the condition of this sidewalk to be shown upon either side of the hole in question, and in front of the same block. A review of the following cases and others shows that the respondents' theory was, by the several courts, sustained: Osborne v. City of Detroit (C C.) 32 F. 36; Fuller v. Mayor, etc. (Mich.) 52 N.W. 1075; Shaw v. President, etc. (Wis.) 42 N.W. 271; Munger v. City of Waterloo (Iowa) 49 N.W. 1028; Gude v. City of Mankato (Minn.) 15 N.W. 175. In Osborne v. City of Detroit (decided by the United States circuit court, E. D. Michigan) 32 Fed., at page 39 of the opinion, the court says: 'The court was, and still is, of the opinion that plaintiff was not confined to proving the condition of the walk at the exact spot where the injury occurred. * * * Of course, there should be reasonable discretion exercised in admitting evidence of the condition of the walk near the accident; but we think, in any case, if it be so near the place of accident that a person examining the walk, or responsible for the condition of the walk in that neighborhood, would be likely also to notice the defect at the spot where the accident occurred, it would be competent.' In Shaw v. President, etc. (Wis.) 42 N. W., at page 272 of the opinion, the court says: 'Several objections to the admission of testimony were made on behalf of the defendant during the trial, based upon the proposition that it was incompetent for the plaintiff to show any defects in the sidewalk, except at the precise place where the plaintiff was injured. Two rulings upon the subject to which exceptions were duly taken present this proposition for determination. One of these rulings permitted the plaintiff to show the condition of the sidewalk 50 or 60 feet each way from the place of the accident. The other ruling was the admission of evidence of the generally bad condition of the same sidewalk from that place south nearly to the depot. Such...