Lund v. St. Paul, M. & M. Ry. Co.

• Decision Date: 17 March 1903
• Citation: 31 Wash. 286,71 P. 1032
• Court: Washington Supreme Court
• Parties: LUND v. ST. PAUL, M. & M. RY. CO.*

71 P. 1032

31 Wash. 286

LUND v. ST. PAUL, M. & M. RY. CO.*

Supreme Court of Washington

March 17, 1903

Appeal from Superior Court, Spokane County; Leander H. Prather Judge.

Action by O. Lund against the St. Paul, Minneapolis & Manitoba Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Hamblen & Lund, for appellant.

Will H Thompson and M. J. Gordon, for respondent.

HADLERY, J.

The respondent railway company applied to the city council of the city of Spokane for leave to construct its line of railroad along and across certain streets and alleys of said city. An ordinance granting said privilege was passed and approved. Washington street, in said city, extends upon both sides of the Spokane river; the portions of the street separated by the river having been connected by a wooden bridge at the time of the passage of the ordinance above mentioned. By the terms of said ordinance a steel bridge was required to be constructed, and the plans called for certain changes in the grade of the street. The respondent entered upon the work of changing said grade and constructing said bridge as required by the ordinance. In the prosecution of the work, it became necessary to close up the street at the place where it crosses the river, and the traveling public were thereby prevented from crossing there. The street was a much-traveled one, and the work of construction upon the bridge occupied more than a year, during which time no travel was permitted to cross the river at that place. Appellant was the owner of real estate upon said street situate a short distance from the end of the bridge. The premises were, however, accessible from another direction. For a time before the street was closed at the bridge crossing, appellant had been conducting a hotel, with barroom attached, upon said premises. He claims that the interference with travel across the river upon that street greatly affected his business, and reduced the profits thereof, to his serious damage. He brought this suit to recover from respondent for such alleged damages. He alleges that by the exercise of reasonable and proper diligence in the making of said improvements the respondent might have constructed said bridge, and opened it for public use and travel, within three months from the time of commencing the work, and that said period of three months was a reasonable time within which to complete the same. He further alleges that, if said bridge had been constructed within a reasonable time, the profits of his business would have been at least $20 per day greater that, in consequence of the unreasonable delary, travel was diverted from his premises; and that he been damaged in the sum of $5,000. The material allegations of the complaint are denied by the answer. A trial was had before a jury, which resulted in a verdict for respondent. Appellant moved for a new trial, which was denied. Judgment was entered upon the verdict that appellant take nothing by his suit, and from said judgment he has appealed.

Error is assigned upon certain instructions in relation to the question of reasonable time for the construction of the bridge. The criticism urged is that the case was submitted to the jury upon the theory that, in order for appellant to recover, it was necessary to show want of care and diligence on the part of respondent. It is insisted that such a theory is a wrong conception of the case, and that the real question is whether the facts concerning the street obstruction constituted a nuisance and, if so, that respondent cannot be relieved from liability, though the work of construction may have been done in the most approved manner. It is further urged that the mere fact that injurious results were occasioned by the work is sufficient, if a nuisance existed, and that care on the part of respondent is not an element in the case. It appears to us that the theory of counsel and that of the court both lead to the same result. The city had the undoubted right to close the street for the purpose of building the bridge, and the obstruction occasioned thereby could not within a reasonable time have been classified as a nuisance. The city delegated the respondent company to make the improvement, and thereby vested it with authority to exercise the privileges belonging to the city in the premises. Therefore, as long as respondent exercised reasonable diligence, the obstruction could not constitute a nuisance. But if want of care and diligence existed, then the obstruction was no longer a necessity, and became a nuisance, It follows that the instructions criticised correctly stated the law of the case.

It is assigned that the court erroneously instructed the jury to the effect that if the obstruction of the street was continued by reason of the failure of the steel company to furnish the necessary steel, and not because of any lack of diligence on respondent's part, then appellant could not recover. The evidence showed that respondent had promptly contracted with the American Bridge Company to furnish the structural steel required by the plans approved by the city for use in this bridge. That company was shown to be probably the best-equipped one in the entire country. The testimony was not contradicted that such material as was required for this bridge is not kept in stock by any company, but must be manufactured under special order, according to plans submitted. There was no showing in the evidence that the manufactured material could have been procured at an earlier date from any other source. There was also evidence to the effect that the delay of the manufacturing company was due to strikes and labor troubles, and that element was also made a feature of the instructions of the court in the connection now under consideration. The respondent had been delegated by the city to do this work, and no time was specified within which it should be done. It was therefore under obligation to finish the structure within a reasonable time. It applied to probably the best-recognized source for obtaining the manufactured material--a material which respondent itself was not prepared to manufacture, and which must have been known to the city at the time it delegated respondent to do the work. ...