Mischke v. City of Seattle

• Decision Date: 16 December 1901
• Citation: 67 P. 357,26 Wash. 616
• Court: Washington Supreme Court
• Parties: MISCHKE v. CITY OF SEATTLE. [1]

67 P. 357

26 Wash. 616

MISCHKE v. CITY OF SEATTLE. ^[1]

Supreme Court of Washington

December 16, 1901

Appeal from superior court, King county; Frank H. Rudkin, Judge.

Action by Frank Mischke against the city of Seattle. From a judgment in favor of defendant, plaintiff appeals. Reversed.

G. Ward Kemp and Victor E. Palmer, for appellant.

W. E Humphrey and Edward Von Tobel, for respondent.

DUNBAR J.

This action was brought by appellant (plaintiff below) to recover damages for personal injuries occasioned by his falling over an obstruction on one of the public sidewalks in the city of Seattle. The obstruction in question consisted of two iron doors used to cover a hatchway in said sidewalk, which said doors and hatchway were maintained near the middle of said sidewalk for private convenience of the adjoining lot owners, with the full knowledge and consent of the city. The trial court, after hearing appellant's evidence, on motion by respondent granted a nonsuit on the ground that appellant was guilty of contributory negligence. The substance of the appellant's testimony in relation to the transaction, after describing the doors, is as follows 'Q. You said you were coming down the street. Which way was the wind striking you then,--the wind and rain? A. The wind struck me right in front, in the face. Q. About how far in front of you could you see, in the way you had the umbrella? A. I could not see, only look right in the umbrella. Q. How? A. I looked right in the umbrella. I could not see nothing. Q. About how far could you see down ahead of you, if you looked down the sidewalk, the way your umbrella was held? A. Just a little ways. Q. What? A. I could not see any, it was raining so hard.' The witness upon cross-examination stated that what he meant by looking into the umbrella was that he could see part of his umbrella in front of him when he was walking, but that it was raining and blowing so hard he could not see the doors which were raised upon the street, and that he struck his knees against one of the doors, was thrown forward, and struck his head against the sharp edge of the opposite door, thereby sustaining the injuries complained of. It is earnestly contended by the respondent that the facts testified to by the appellant show conclusively that he was guilty of contributory negligence that there was no dispute as to the facts, and that it was the duty of the court to sustain the motion made for a nonsuit. It is the well-established law of the land that for the maintenance of a nuisance upon a sidewalk or highway the city is liable; that, where a city is given exclusive power over its streets, such power must be exercised for the good of the general public, and that it cannot escape responsibility when it authorizes obstructions in a street for merely private purposes. Elliott, Roads & S § 653; Costello v. State (Ala.) 18 So. 820, 35 L. R. A. 303; McLeod v. City of Spokane (decided by this court Nov. 23, 1901) 67 P. 74. It was said by the appellate court of New York in Wendell v. Mayor, etc., 39 Barb. 329, that where municipal corporations or individuals are charged, as in the case of streets or highways, with the duty of keeping them in repair, and exercising a general oversight in regard to their condition and safety, they, or the body they represent, are liable for all injuries happening by reason of their negligence; that the use of streets and highways is designed for the public for the purposes of passage, travel, and locomotion, and that the use of them by an individual simply for his own convenience and accommodation, unaccompanied by public uses, is unauthorized, and essentially a nuisance, making not only the party maintaining such nuisance liable, but the public body also. The right to sue cities in this state was established in Sutton v. City of Snohomish, 11 Wash. 24, 39 P. 273, 48 Am. St. Rep. 847, and Saylor v. City of Montesano, 11 Wash. 328, 39 P. 653. In Sutton v. City of Snohomish it was held that, where a city has exclusive control of the management of its streets, and the power to raise money for their construction and repair, a duty arises to the public, from the character of the powers granted, to keep its streets in a reasonably safe condition for use in the ordinary modes of travel, and the city is liable to respond in damages to those injured by a neglect to perform such duty. It is also held that whether the alleged protection was provided by the city to guard travelers against accidents in the case of an excavation in a street was a question for the determination of the jury, and the fact that a traveler upon a highway, who had some knowledge of the excavation thereupon, upon coming, on a dark night, to a guard placed partially over the excavation, attempts to step around to one side, and falls into the excavation at a point left unprotected and unlighted, is not conclusive evidence of contributory negligence on his part, but that the question of negligence under such circumstances was properly submitted to the jury; the court in that case saying: 'Whether an ordinarily prudent and cautious man would, under similar circumstances, have turned to the right or to the left, was a question for the jury, and not the court, to determine.' It is insisted that the circumstances testified to by the appellant in this case show contributory negligence as a matter of law, and the argument is that he precluded himself from seeing the open cellar way by carrying his umbrella in front of him in the manner described; that it is the duty of pedestrians upon sidewalks to keep their eyes open, and notice where they are stepping; that when they fail to do this they cannot recover for any injury sustained by reason of any defect in the sidewalks; and that, the facts being undisputed, no error was committed by the court in granting the motion for nonsuit. But it must be borne in mind that it is not sufficient to justify the court in taking the case from the jury that the facts be undisputed, but it must also appear that there is no room for a difference of opinion as to the inferences and conclusions to be drawn from admitted facts. Once it is understood by a juror that sidewalks are made for the use and travel of pedestrians, and that the pedestrian has a right to assume that the city has done its duty in so maintaining such sidewalk, it might not be illogical for such juror to draw the inference that no contributory negligence was proven by the testimony in this case. It is a matter of common observation and experience that during storms and squalls of wind it is frequently impossible for a person to protect himself without carrying an umbrella in front of him to such an extent that it would greatly impair his vision, and it seems to us that reasonable men might reasonably differ in reaching a conclusion in this case as to whether or not the appellant was guilty of contributory negligence. It is not the duty of the pedestrian on a sidewalk to bear constantly in mind dangers which may beset him by reason of an imperfect walk. If the rule contended for by the respondent should be enforced, one would not dare to turn his head to the right or to the left in traveling a street, but he would be compelled to constantly notice the sidewalk in front of him. Some people are naturally alert and observant of material things, notice everything that is in sight; not necessarily as a matter of caution or prudence, but frequently from curiosity. Others are more meditative as they move around, abstracted in thought, unobservant of their material surroundings, and absorbed frequently in the contemplation of business, pleasure, or mental problems of various kinds. The great majority of people are, at least at times, so abstracted; and shall we say that only the most alert and observant are to be protected from pitfalls on a public highway? Not so. The great rank and file of thoughtful, contemplative people have a right to rely upon the duty of the city authorities to keep the sidewalks upon which they are invited to travel in a safe condition for travel, and the burden of mental strain and watching to avoid pitfalls where no pitfalls should be is not imposed upon them by the law, at least to such an extent that they are to be deprived of the right of submitting the reasonableness of their actions to the consideration of a jury of their peers. One has a right to travel upon the street on the darkest night without a lantern, relying upon the performance of their duties by the authorities in keeping the streets in a suitable condition for travel. Certainly it does not follow that if, from a stress of weather, a person, to defend himself from torrents of rain, carries his umbrella in the only position in which he can carry it,--which is the fact shown in this case,--it can be said he has committed negligence per se.

On the question of the right of the court to take the case from the jury, it appeared in Van Praag v. Gale (Cal.) 40 P 555, that plaintiff and defendant had occupied adjoining stores for a number of years, and that in front of defendant's store there was a trapdoor in the sidewalk for the use of the defendant and his tenants, which was opened when ingress to the basement was necessary, and with the use of which plaintiff was familiar. On the day of the accident plaintiff was called to a jeweler's store on the other side of defendant's store, and when he passed defendant's store the trapdoor was closed. On returning he fell into the trapdoor, it having been opened to allow the ashman, whose cart was in front of defendant's door, to go into the basement. Plaintiff had seen the ashman drive up, but had not seen the trapdoor opened. It was held that whether plaintiff was negligent was for the jury. In the course of...