McQuillan v. City of Seattle

Decision Date03 January 1895
Citation38 P. 1119,10 Wash. 464
PartiesMCQUILLAN v. CITY OF SEATTLE.
CourtWashington Supreme Court

Appeal from superior court, King county.

Action by John McQuillan against the city of Seattle. From a judgment of nonsuit, plaintiff appeals. Reversed.

Hoyt J., dissenting.

Byers McElwain & Byers, for appellant.

W. T Scott, for respondent.

ANDERS J.

About 8 o'clock on the evening of March 8, 1892, the appellant left the Villard House, at the corner of Railroad and Yesler avenues, to go to his home, on South Fifth street, between Main and Jackson streets, in the city of Seattle. When he reached the corner of Fourth and Jackson streets he walked eastward, on the south side of Jackson street, in the direction of his house, nearly 100 feet, and then crossed over to the sidewalk on the north side. The sidewalk on that side of the street was in such a defective and dangerous condition for the space of about 100 feet immediately east of Fourth street that it was unsafe to travel upon it, and had been in the same condition for more than a year previous to the date above mentioned, and the appellant was cognizant of it, having passed along that portion of the street almost daily in going to and from his home, for a period of two years or more. The defects in the sidewalk consisted of openings caused by the removal of one or more planks at several different places, which were not replaced but were laid loosely across the open spaces; in some instances, if not all, near the outer edge of the walk. There was no railing or other safeguard around this defective portion of the walk, nothing to give warning of danger, and the night was dark, and the street in that vicinity was but dimly lighted. The appellant, thinking he had passed all the dangerous places, approached the sidewalk, and stepped upon a loose plank, which was lying partially across an open space, about two feet wide, at the eastern extremity of the defective portion. The board suddenly tipped downward, and the appellant fell through the sidewalk to the ground beneath, a distance of 18 or 20 feet, thereby receiving serious bodily injury. Thereafter he instituted this action against the city to recover damages for the injuries sustained. The cause proceeded regularly to trial, and at the close of plaintiff's evidence a nonsuit was granted, on motion of the defendant, on the ground of contributory negligence on the part of the plaintiff. Judgment for costs was thereupon entered against the plaintiff.

The sole question to be determined on this appeal is whether the learned trial court erred in granting the nonsuit. Generally the question of contributory negligence is for the jury to determine from all the facts and circumstances of the particular case, and it is only in rare cases that the court is justified in withdrawing it from the jury. Railroad Co. v. Stout, 17 Wall. 657; Railroad Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679; Lowell v. Watertown Tp., 58 Mich. 568, 25 N.W. 517; Railroad Co. v. Van Steinburg, 17 Mich. 121; Jones, Neg. Mun. Corp. §§ 221, 222; Maloy v. City of St. Paul (Minn.) 56 N.W. 94; Ladouceur v. Railroad Co., 4 Wash. 38, 29 P. 942; City of Denver v. Soloman (Colo. App.) 31 P. 507; 2 Thomp. Neg. p. 1236. There are two classes of cases in which the question of negligence may be determined by the court as a conclusion of law, but we think the case in hand does not fall within either of them. The first is where the circumstances of the case are such that the standard of duty is fixed, and the measure of duty defined, by law, and is the same under all circumstances. City of Denver v. Soloman, supra, and authorities cited. And the second is where the facts are undisputed, and but one reasonable inference can be drawn from them. Cooley, Torts, §§ 670, 671; 2 Thomp. Neg. §§ 1236, 1237. If different results might be honestly reached by different minds, then negligence is not a question of law, but one of fact for the jury. Railroad Co. v. Ives, supra. The mere fact that the appellant was aware of the defective condition of the sidewalk when the accident occurred is not per se conclusive of negligence on his part, though it was competent evidence on the question of contributory negligence. Bridge Co. v. Bevard (Pa. Sup.) 11 A. 575; Millcreek Tp. v. Perry (Pa. Sup.) 12 A. 149; Kelly v. Blackstone, 147 Mass. 448, 18 N.E. 217; Frost v. Waltham, 12 Allen, 85. Having knowledge of the defect, he was bound to use more care in passing than if he had been entirely ignorant of it, but he was not bound to use extraordinary care. All that the law required was the exercise...

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