Lund v. City of Seattle

• Decision Date: 07 January 1918
• Docket Number: 14336.
• Citation: 169 P. 820,99 Wash. 300
• Parties: LUND v. CITY OF SEATTLE.
• Court: Washington Supreme Court

169 P. 820

99 Wash. 300

LUND v. CITY OF SEATTLE.

No. 14336.

Supreme Court of Washington

January 7, 1918

Department 1. Appeal from Superior Court, King County; A. W. Frater Judge.

Action by Gunnar Lund against the City of Seattle. Judgment for plaintiff and order overruling motion for new trial, and defendant appeals. Affirmed.

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

O. L Willett, Frank Oleson, and John A. Soule, all of Seattle, for respondent.

WEBSTER J.

Respondent brought this action to recover damages for personal injuries resulting from a fall occasioned by an obstruction that existed in one of the streets of the city of Seattle. The defendant's challenge to the sufficiency of the evidence and its motions for an instructed verdict and for judgment notwithstanding the verdict returned in plaintiff's favor, which were overruled, present the chief question involved in this appeal--the sufficiency of the evidence to sustain the verdict. This the trial court, in passing upon the several motions and in overruling the motion for a new trial, resolved against the contention of the appellant.

There was substantial testimony tending to establish these facts Prior to October, 1915, Lakeview avenue, one of the streets of the city of Seattle, was laid out and improved for public use and travel by the appellant. The driveway portion of the street, 75 feet in width, was paved. Between the curb of the pavement and each sidewalk was an 8-foot parking strip, graded and cleared. The sidewalks were of cement, 6 feet in width. On the west side of the street, in front of the premises designated as No. 779 Lakeview avenue, between the west side of the cement sidewalk and the property line, there was a graded and level parking strip 8 1/2 feet in width. A cement walk, connecting at right angles with the west side of the sidewalk, led to the premises above described. In the fall of 1915 the owner of the premises drove iron stakes about 12 inches high flush with the west side of the cement sidewalk, and flush with the edge of the walk leading to the house. To these stakes were attached several wires, forming a wire netting 12 inches in height along the inner edge of the sidewalk and the walkway above referred to; one of the iron posts which supported the wires being driven at the point where the west line of the cement sidewalk intersected the edge of the walkway leading to the house at No. 779 Lakeview avenue. This obstruction thus erected was more than 8 feet from the property line and within the portions of the street which the city had laid out and improved for public use and travel.

On October 20, 1915, the owner of the premises leased the front room of the house to the appellant for the purposes of a municipal election to be held on March 7, 1916, a primary election on February 21, 1916, and for the convenient registration of electors on January 7 and 8, 1916. From the record it is not clear whether the obstruction had been erected when the city selected the premises at the time the lease was executed. However, it is certain that it existed as early as the month of November, 1915, and was allowed by the city to be and remain in such condition until the respondent sustained the injury on the evening of March 7, 1916; notwithstanding the fact that at least three other persons stumbled over the wire netting prior to the happening of the respondent's injury--one of which accidents occurred during the primary election on February 21, 1916. No lights or warnings of any character were ever placed or maintained with reference to the obstruction, and there was nothing to indicate or disclose its presence when the injury occurred.

Between 7 and 8 o'clock on the evening of March 7, 1916, respondent and his wife walked north along the sidewalk on the west side of Lakeview avenue intending to vote at the polling place maintained by the city on the premises as above described. The respondent was on the inside, or west side, of the sidewalk. As they reached the intersection of the walkway leading to the house, the respondent's left foot became entangled in the wire netting and he fell forward upon the cement walk, resulting in the injury for which this action was brought. The night was dark and stormy and there was no light in the vicinity sufficient to reveal the obstruction beside the sidewalk.

It is first urged by appellant that the holding of an election, including the selection of a voting place, is a governmental function, and the city is not responsible for injuries occasioned to the voters on the premises where the election is being held. A sufficient answer to this contention is that the facts in this case show the injury occurred in the street, not on the premises where the election was held.

It is next urged that the city is not liable for injuries received by pedestrians while outside that part of the street improved by the city. This proposition assumed by the appellant is not...