Lewis v. City of Spokane

• Decision Date: 11 May 1923
• Docket Number: 17748.
• Court: Washington Supreme Court
• Parties: LEWIS v. CITY OF SPOKANE.

215 P. 36

124 Wash. 684

LEWIS v. CITY OF SPOKANE.

No. 17748.

Supreme Court of Washington

May 11, 1923

Department 1.

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Action by Calista M. Lewis against the City of Spokane. Judgment for plaintiff, and defendant appeals. Affirmed.

J. M Geraghty and Alex M. Winston, both of Spokane, for appellant.

W. H Plummer and Paul H. Graves, both of Spokane, for respondent.

BRIDGES J.

The only question in this appeal is whether a defect in a city sidewalk, because of which the respondent claims to have been injured, was such as made it the duty of the court to submit to the jury the question of the city's negligence.

Respondent's testimony tended to show that the hole which constituted the defect was about 2 1/2 inches deep. Appellant contends that its photographs conclusively prove that it was not more than one-half inch in depth, and that the photographic evidence must control.

We cannot accept this contention. Photographs are received in evidence for the same reason that maps, models, and diagrams are received, and are no more conclusive of a physical fact than the testimony of witnesses, and will ordinarily not be considered as conclusive of certain existing facts when there is testimony of witnesses which disputes them. Higgs v Minn., St. Paul, etc., Ry., 16 N.D. 446, 114 N.W. 722 15 L. R. A. (N. S.) 1162, 15 Ann. Cas. 97; Stotelmeyer v. C., M. & St. P. Ry., 148 Iowa, 278, 127 N.W. 205; Steinke v. Oshkosh, 159 Wis. 124, 149 N.W. 715; Cunningham v. Fairhaven, etc., R. Co., 72 Conn. 244, 43 A. 1047. There were two sets of photographs taken--one the day after the injury; the other about a month later. If our memory serve us correctly, it was stated in oral argument that the first photographs were taken with a view of showing the alley near which the accident happened, and not for the purpose, expressly, of showing the defect in the sidewalk. This was done because at that time the city understood the injury to have happened on the alley. In any event, it is impossible to tell from an examination of these photographs the depth or approximate depth of the hole. The second photographs were taken for the purpose of showing the depth of the defect, but there was testimony tending to show that, after the injury and before the taking of the second photographs, the hole was either partly or completely filled in with dirt and gravel, and therefore they cannot be of very much assistance to us. In considering the question before us, we must assume that the defect was such as was described by the respondent's witnesses.

The respondent, a woman about 50 years of age, on the evening of December 22, 1920, was walking north on the east sidewalk of Washington street, in the city of Spokane. This street is an important one and much traveled by automobiles and pedestrians. Some sleet and rain were falling and the sidewalks were slippery. Between Fourth and Fifth avenues there is an alley, paved with brick. The sidewalk up to the alley had a little more than a 5 per cent. grade, while the crossing at the alleyway had a grade of approximately 14 per cent. The sidewalk was made of cement blocks and was of the usual width. The curb running along the east side of Washington street, and turning so as to separate the alley from the sidewalk, was about 1 inch higher than the sidewalk. The latter did not extend quite up to the curbing. In other words, there was a hole between the edge of the sidewalk and the curb, running from 3 1/2 inches to 6 inches in width, and extending, according to respondent's testimony, some 2 1/2 inches in depth below the level of the adjoining sidewalk, and about 3 1/2 inches in depth below the top of the curb. This hole extended along the curb for the full width or the sidewalk. The edges of the sidewalk were jagged and broken. 'There was a hole in the end of the walk, and I caught my foot against the curb,' the respondent testifies, 'and my other foot--I didn't know I was caught until I went to put out the left foot--it was the right I caught, and that held me, and in getting up then I lost my balance.' This occurred while it was dark or getting dark. One of her witnesses described the defect as follows:

'At the place of the accident there was a break in the sidewalk between the sidewalk and the curb. On the west side it was 5 or 6 inches wide and in the center 3 1/2 or 4 inches wide. It was jagged and hard to tell. It was at least from 2 to 2 1/2 inches deep from the sidewalk, and this from the edge of the curb would make it another inch deeper.'

Other of respondent's witnesses gave substantially the same description of the defect. We have, then, a hole between the end of the sidewalk and the curb at the alley, as long as the sidewalk is wide and from 4 to 6 inches in width and about 2 1/2 inches in depth. The question is: Did the court err in allowing the jury to determine whether the city was guilty of negligence in permitting such a hole or defect in the sidewalk.

This exact situation has not previously been before this court. It is, of course, unnecessary to cite authorities in support of the proposition that, while a city must use all reasonable care in keeping its sidewalks reasonably safe for travel, it is not an insurer. A city is not liable for injuries that may occur from an insignificant defect. Probably a good test is whether reasonably cautious men, having a duty to observe and repair the sidewalks, would or would not consider a defect as one where pedestrians might be injured. Each case must rest upon its own facts and be determined accordingly.

In Blackwell v. Seattle, 97 Wash. 679, 167 P. 53, we held that it was negligence for a city to place a water pipe an inch or more in diameter across a sidewalk, without in any way protecting it at night.

In Lautenschlager v. Seattle, 77 Wash. 12, 137 P. 323, we held that it was for the jury to determine whether the city was negligent in maintaining a sidewalk six inches lower than the cement walk with which it connected at a street intersection.

In De Lor v. Symons, 93 Wash. 231, 160 P. 424, we held that it was proper to submit to the jury the question of the negligence of a city in maintaining a trapdoor in a sidewalk which sagged down under the weight of the plaintiff so that his toe caught under the edge of one of the doors, and he fell and was injured.

In the case of Smith v. Seattle, 33 Wash. 481, 74 P. 674, we made a similar ruling with reference to a trapdoor which projected several inches above the level of the walk.

While these cases are not controlling in their facts, yet they strongly indicate the trend of this court concerning the...