Lorence v. City of Ellensburgh

• Citation: 43 P. 20,13 Wash. 341
• Parties: LORENCE v. CITY OF ELLENSBURGH.
• Decision Date: 30 December 1895
• Court: United States State Supreme Court of Washington

43 P. 20

13 Wash. 341

LORENCE v. CITY OF ELLENSBURGH.

Supreme Court of Washington

December 30, 1895

Appeal from superior court, Kittitas county; Carroll B. Graves Judge.

Action by Ethel Lorence, by guardian, against the city of Ellensburgh, for personal injuries. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

John B Davidson, for appellant.

L. A Vincent, Austin Mires, and Edward Pruyn, for respondent.

GORDON J.

This was an action brought by plaintiff in the superior court for Kittitas county, in this state, to recover damages for a personal injury sustained from a fall on a defective sidewalk. The complaint alleges that the defendant wrongfully and negligently suffered and permitted the sidewalk on a street in said city, known as "Third Street," to become and remain out of repair for several months prior to the date of the injury, which was the 20th of February, 1892. The alleged defect consisted of a V-shaped opening in the walk, of about five inches in width, and about 24 inches in depth. The defendant city answered the complaint by denying generally and specifically all of the allegations contained in it, and upon the trial a verdict was rendered in favor of the plaintiff (respondent here) against the appellant (city) for the sum of $8,000; and from the judgment entered upon said verdict, and the order of the court denying appellant's motion for a new trial, this appeal is taken. The record is somewhat exceptional, in this: It is not contended that any error was committed by the trial court in admitting or rejecting testimony at the trial, or in charging or refusing to charge the jury concerning the law of the case, nor was any objection made either below or here as to the sufficiency of the pleadings.

1. The principal contention made in the brief of appellant in this case is that the city is not liable in actions for injuries received by reason of defective streets and sidewalks, and the first 37 pages of said brief are devoted to the discussion of that proposition. After the preparation of the brief, but prior to the hearing of the cause, this court passed upon a like question adversely to such contention, in the case of Sutton v. City of Snohomish, 39 P. 273, in which we held that "where a city has exclusive control of its streets, with power to raise money to keep them in repair, it is bound to keep them in a reasonably safe condition for ordinary travel."

2. It is next contended that the court below erred in denying appellant's motion for a nonsuit, which motion was urged upon the ground that the evidence in behalf of the plaintiff showed her to have been guilty of contributory negligence. An examination of the record satisfies us that the nonsuit was properly denied. It appears from the evidence that plaintiff at the time of the injury, was a child of about eight years; that she lived with her parents at a place near where the accident occurred; that during the forenoon of the day of the accident, while in company with an elder sister, on the way to Sabbath school, she ran into the...