Norman v. City of Bellingham

• Decision Date: 06 April 1907
• Citation: 46 Wash. 205,89 P. 559
• Parties: NORMAN v. CITY OF BELLINGHAM.
• Court: Washington Supreme Court

89 P. 559

46 Wash. 205

NORMAN v. CITY OF BELLINGHAM.

Supreme Court of Washington

April 6, 1907

Appeal from Superior Court, Whatcom County; Jeremiah Neterer, Judge.

Action by Charles P. Norman against the city of Bellingham. Judgment for plaintiff. Defendant appeals. Affirmed.

Henry C. Beach, for appellant.

Kellogg & Neal, for respondent.

FULLERTON J.

The respondent, while driving a delivery wagon along one of the streets of the appellant city, ran the wagon against a rock which protruded from the bottom of the roadway. The jar from the impact threw him from the wagon to the ground, causing personal injuries for which he sued in this action. At the trial the jury returned a verdict in his favor for $500, on which judgment was entered. The city appeals.

In the main, the questions discussed by the appellant were conclusively determined against it by the verdict of the jury. Whether the city was negligent in suffering the obstruction causing the injury to remain in the highway whether the obstruction was the primary cause of the injury whether the city had notice of the obstruction, and whether the respondent was guilty of contributory negligence were questions on which there was a substantial conflict in the evidence; and, where such is the case, the verdict is conclusive in this court. We cannot substitute our judgment for the judgment of the jury even when we are convinced that the verdict is against the weight of the evidence. The trial judge may properly grant a new trial on the ground that the weight of the evidence is against the verdict; but the right does not extend to this court. Clark v. Great Northern R Co., 37 Wash. 537, 79 P. 1108.

The appellant, however, makes the point that the evidence failed to show affirmatively that the respondent was free from contributory negligence, and cites a number of cases from other jurisdictions holding that the burden is upon the person injured to show that his want of care did not contribute to his injury. Undoubtedly the rule contended for prevails in the jurisdictions from which the cases cited were obtained, but the rule is not general and was early repudiated by this court. In this state the burden is upon the party affirming it to establish contributory negligence and, where the evidence is silent as to the question, due care is presumed. Northern Pacific R. R. Co. v O'Brien, 1 Wash. 599, 21 P. 32; Northern Pacific R. R. Co., v. Hess, 2...