McClammy v. City of Spokane

• Decision Date: 22 December 1904
• Citation: 36 Wash. 339,78 P. 912
• Court: Washington Supreme Court
• Parties: McCLAMMY et ux. v. CITY OF SPOKANE.

78 P. 912

36 Wash. 339

McCLAMMY et ux. v. CITY OF SPOKANE.

Supreme Court of Washington

December 22, 1904

Appeal from Superior Court, Spokane County; Geo. W. Belt, Judge.

Action by Mark McClammy and wife against the city of Spokane. From a judgment for defendant, and from the order granting a new trial, defendant appeals. Affirmed.

John P. Judson, A. H. Kenyon, and A. G. Avery, for appellant.

Roche &amp Onstine and E. H. Sullivan, for respondents.

HADLEY J.

This suit was brought by the respondents, who are husband and wife, against the appellant, to recover damages for injuries received by respondent Etta McClammy from falling through a trapdoor opening upon a sidewalk. The owner of the adjoining property R. W. Mott, was made a party defendant, but he was not served with summons and did not appear in the action. The complaint briefly stated, alleges that the part of the sidewalk in front of the building known as the 'Mott Block,' on Main avenue in the city of Spokane, is one of the principal traveled sidewalks in said city; that on or about the 17th day of October, 1902, and for some time prior thereto, the defendants negligently permitted said sidewalk and a large trapdoor therein to become out of repair and dangerous; that theretofore, on or about the 7th day of October, 1902, the defendant city gave to said Mott written permission to repair the sidewalk and trapdoor, and that, in pursuance thereof, some of the boards of the sidewalk were torn up, and that the trapdoor was thereby rendered more dangerous; that no guards were placed there, and no notice of any kind was given to the public of said dangerous condition; that on the date first above mentioned the injured respondent was traveling upon the sidewalk, going to her residence in the said Mott Block, and, as she came directly in front of the entrance to said building upon said trapdoor, the latter gave way, whereby she was thrown to the bottom of a basement stairway, and seriously injured. The answer consists of general denials and affirmative allegations of fact which are claimed to amount to contributory negligence. The cause was tried before the court and a jury. At the conclusion of the evidence the city challenged the sufficiency thereof to authorize a verdict in favor of respondents. The challenge was granted, and the jury discharged. Respondents then moved for a new trial, which was granted, for the reason, as stated in the order upon the motion for new trial, 'that the city's liability and the question of contributory negligence should have been submitted to the jury.' The city has appealed from the order granting a new trial.

Appellant urges that the evidence does not sustain the averment that the city granted a permit to repair the sidewalk and trapdoor, but that it was a permit to construct a brick sidewalk. Such is the wording of the permit, but the place for the brick walk to be constructed was described in the permit, and it was at the same place where the board walk and trapdoor then existed. It seems to us that no material distinction should be drawn between the allegations of the complaint and the language of the permit, so far as appellant's relations to the circumstances were concerned. Either the building of a brick sidewalk there or the repair of the board one, which was alleged to be old and rotten, involved a tearing up of material and a change of conditions rendering the place more or less dangerous to the traveling public. It is of such change of conditions and lack of protection therefrom that respondents complain, and we think the evidence as to the permit in its material effect supports the averments of the complaint.

The city was chargeable with notice of the conditions. The permit says that the work shall be done 'under the supervision and direction of the city engineer.' Thus, while it is true the property owner was doing the work through his own contractor, yet he was under the immediate supervision and direction of an officer of the city. The...