Lautenschlager v. City of Seattle

• Citation: 137 P. 323,77 Wash. 12
• Parties: LAUTENSCHLAGER et al. v. CITY OF SEATTLE et al.
• Decision Date: 19 December 1913
• Court: United States State Supreme Court of Washington

137 P. 323

77 Wash. 12

LAUTENSCHLAGER et al. v. CITY OF SEATTLE et al.

Supreme Court of Washington

December 19, 1913

Department 1. Appeal from Superior Court, King County; Everett Smith Judge.

Action by Mary E. Lautenschlager and husband against the City of Seattle and others. From a judgment for defendants notwithstanding a verdict for plaintiffs, plaintiffs appeal. Reversed as to the city, and affirmed as to the other defendants.

Willett & Oleson, of Seattle, for appellants.

Jas. E Bradford, Howard M. Findley, John W. Roberts, and Peters & Powell, all of Seattle, for respondents.

GOSE, J.

This is an action to recover for personal injuries sustained by the plaintiff in consequence of the alleged negligence of the defendants.

The facts in brief are these: On the evening of the 28th day of February, 1912, the plaintiff, in attempting to step from the cement walk to a temporary sidewalk at the southeast corner of Fifth avenue and Cherry street, fell and was injured. Her testimony shows that a two-plank walk had been laid on the east side of Fifth avenue in the sidewalk area from Cherry street south one block to James street. One of her witnesses said that it extended south two blocks to Jefferson street. There was a cement sidewalk on the south side of Cherry street, which extended east at least one block. There was an abrupt drop of about six inches from the cement walk to the planks. The plaintiff lived on Fifth avenue some distance north of Cherry street. On the evening in question she left her home with a view to attending church at Fifth avenue and Jefferson street. She traveled south along a planked roadway about 18 feet in width in the center of the avenue to the south side of Cherry street, thence east over a single plank connecting the roadway with the cement walk at the southeast corner of Fifth avenue and Cherry street. She then started south, falling at the offset at the connection between the cement walk and the two planks. She testified that she had theretofore continued south on the planked way in the center of the street; that she had seen the plankway on the east side of Fifth avenue, but that she did not know of the existence of the offset. Her testimony shows that the street light was so situated that it cast a shadow over the offset. Her testimony also tends to show that the two-plank walk had been in common use by the public for two or three months preceding the date of her injury. At and for a considerable period of time before the plaintiff sustained her injury, the city was engaged in paving Fifth avenue from Madison street south to Jefferson street. The avenues run approximately north and south. The streets run approximately east and west. At the time of the accident a cement walk had been laid on the west side of Fifth avenue. There was a barrier at Madison and Jefferson streets on the east side of Fifth avenue, to prevent travel over the unpaved portion of the street, but there was no barrier, signal light, or other warning, over any part of the sidewalk area except as hereafter noticed. The record shows that there were tar cookers, a steam roller, and other paving equipment at or upon the southwest corner of Fifth avenue and Cherry street upon which red lanterns were placed in the nighttime. The coment walk on the west side of Fifth avenue between Cherry and James streets had a further obstruction caused by a slide. Some of the witnesses say that the earth from this slide occupied only a small part of the sidewalk area, leaving an opening of sufficient width to accommodate travel. The charge of negligence is twofold: (a) The offset without a light or barrier to indicate its presence; and (b) that the street lights were so located as to throw a shadow on the offset. The jury returned a verdict in favor of the plaintiff. All the parties to the action filed motions for a new trial, and each of the defendants filed a motion for a judgment non obstante veredicto. The plaintiff's motion for a new trial was denied. The motion of the defendants for a judgment non obstante was granted, and a judgment was entered in their favor. From this judgment the plaintiff appeals.

Both respondents contend that the appellant was guilty of contributory negligence which, as a matter of law, precludes a recovery in her behalf. The respondent McLellan also contends that there is no evidence tending to show any negligence on his part.

We think the court erred in entering a judgment...