Lichtenberg v. City of Seattle

• Decision Date: 26 January 1917
• Docket Number: 13559.
• Citation: 94 Wash. 391,162 P. 534
• Parties: LICHTENBERG et al. v. CITY OF SEATTLE.
• Court: Washington Supreme Court

162 P. 534

94 Wash. 391

LICHTENBERG et al. v. CITY OF SEATTLE.

No. 13559.

Supreme Court of Washington

January 26, 1917

Department 2. Appeal from Superior Court, King County; Everett Smith Judge.

Action by Alice L. Lichtenberg and another against the City of Seattle. Judgment for plaintiffs, and defendant appeals. Affirmed.

Hugh M Caldwell and Frank S. Griffith, both of Seattle, for appellant.

Blair &amp Blinn, of Seattle, for respondents.

MOUNT, J.

The respondents recovered a judgment for $500 for personal injuries to Mrs. Lichtenberg. The defendant has appealed from that judgment.

It appears that on the 11th day of November, 1915, Mrs Lichtenberg took passage in a jitney bus from Thirtieth and Jackson streets, in the city of Seattle, to the northwest corner of Third avenue and Columbia street. At this corner there is a sewer intake set against the curb, and extending into the street about eight inches. This sewer intake is covered with an iron grating. The jitney bus in which Mrs. Lichtenberg was riding stopped at this corner of the street about three feet from the sidewalk and in front of the iron grating. Mrs. Lichtenberg did not see the iron grating. It was too far for her to step from the running board of the automoile to the sidewalk, and she stepped down and upon the pavement. Her foot was caught in the broken iron grating. She fell upon the curb of the sidewalk, and broke her arm. In describing how the accident happened she said:

'I got out of the machine, and I felt something give way under my foot, and my shoe seemed to catch in something. I could not get it free and it, and it throwed me, and I don't remember very much for a few minutes. It kind of dazed me. The first thing I remember is of some one holding me up from the bank, under my arms.'

She then testified as follows:

'Q. Tell the jury about how far the automobile stopped away from the curb, if you know. A. Well I don't know as I know exactly, but a know it was too far for me to step from the machine onto the sidewalk. Q. Where did you step? A. Down on the street. Q. On the paved part of the street? A. Yes, sir. Q. What was the condition of the street as to there being running water there? A. I know it was raining very hard, and the water seemed to be running in the street on the sides. Q. Right down next to the gutter? A. Yes, sir.'

The evidence shows that, when Mrs. Lichtenberg was picked up, she was lying upon the edge of the sidewalk, with her feet across this intake; that the grating over the intake was a cast-iron grating; and that one corner and one of the bars were broken off so as to leave quite a large hole in the iron grating.

It is argued by the appellant that there is no evidence to show that Mrs. Lichtenberg stepped upon this iron grating, and, if the iron grating was defective and out of repair, there is no evidence to show that that condition of the grating was the proximate cause of the injury; that the jury could not reach the conclusion that Mrs. Lichtenberg was injured upon this grating, without resorting to conjecture, guesswork, and surmise; and that for this reason the trial court should have directed a verdict in favor of the appellant, and should have granted a judgment notwithstanding the veries will not court has frequently held that juries will not be permitted to arrive at verdicts by conjecture. Jock v. Columbia & Puget Sound Railroad Company, 53 Wash. 437, 102 P. 405; Armstrong v. Town of Cosmopolis, 32 Wash. 110, 72 P. 1038; Anton v. Chicago, Milwaukee & St. Paul Railway Company, 92 Wash. 305, 159 P. 115.

But it is also held that:

'Negligence, while never presumed, may nevertheless be proved, like any other fact, by circumstantial evidence.' Jensen v. Schlenz, 89 Wash. 268, 154 P. 159.

See, also, Sweeten v. Pacific Power & Light Company, 88 Wash. 679, 153 P. 1054; Abrams v. Seattle & Montana Railway Company, 27 Wash. 507, 68 P. 78; Sroufe v. Moran Bros. Company, 28 Wash. 381, 68 P. 896, 58 L. R. A. 313, 92 Am. St. Rep. 847.

We think the evidence and the circumstances...