Morgan v. Morley

• Decision Date: 19 December 1890
• Citation: 25 P. 333,1 Wash. 464
• Parties: MORGAN v. MORLEY.
• Court: Washington Supreme Court

25 P. 333

1 Wash. 464

MORGAN v. MORLEY.

Supreme Court of Washington

December 19, 1890

Appeal from superior court, Jefferson county.

Calhoun & Coleman, for appellant.

Hays & Plumley, for appellee.

STILES J.

Appellant's objection to the sufficiency of the complaint is not well taken. It is true that the second paragraph of the complaint alleges that the "right and privilege to construct and maintain said wharf in and upon said Tyler street" had been given by ordinance, etc., but the allegations which show where the wharf was actually built, and where the accident happened, make it clear, so far as the complaint is concerned, that that part of the wharf where the plaintiff was injured was not "in and upon Tyler street," but about 100 feet from land of Tyler street, and out over the water. If the facts exactly correspond to the complaint, therefore, perhaps this judgment might stand; but it seems, from the testimony and the findings, that, in fact the wharf was "in and upon" Tyler street, at the point where the hole which caused the injury was, and this cast upon the city of Port Townsend the duty of seeing that it was maintained in proper condition for travel. 2 Dill Mun. Corp. § 1012, Fowler v. Town of Strawberry Hill, 74 Iowa, 644, 38 N.W. 521; Hutchinson v. City of Olympia, 2 Wash. T. 314, 5 P. 606; Charter Port Townsend, (Laws 1881, p. 134, § 93.) Perhaps if this structure had been maintained merely as an approach to the wharf, in the condition in which it was originally built, 32 feet wide, the defendant might have been liable for the injury. But he did not construct the wharf; Eisenbeis constructed it; and at the time of its construction, even though it were 2 feet and over wider than the ordinance permitted, it had a sufficient guard-rail, which would have prevented this accident. But Tyler street was 73 feet wide, and, soon after the wharf was built, people began to build upon and occupy the property along the street and wharf. The front of the buildings so erected was over 20 feet from the outer edge of the wharf, and the owners planked out over the intervening space on the wharf level, and removed the guard-rail, so that a solid road-way was made from side to side of the 73-foot street, and the whole came thus to be used as a public street. It was as a public street that the plaintiff was passing over it; otherwise, he would have had no right there unless business connected with the...