Olmstead v. City of Olympia

• Decision Date: 23 June 1910
• Citation: 109 P. 602,59 Wash. 147
• Parties: OLMSTEAD v. CITY OF OLYMPIA.
• Court: Washington Supreme Court

109 P. 602

59 Wash. 147

OLMSTEAD v. CITY OF OLYMPIA.

Supreme Court of Washington

June 23, 1910

Department 1. Appeal from Superior Court, Thurston County; John R Mitchell, Judge.

Action by P. L. C. Olmstead against the City of Olympia. Judgment for plaintiff, and defendant appeals. Affirmed.

George R. Bigelow, for appellant.

Troy &amp Sturdevant, for respondent.

FULLERTON J.

The respondent, Olmstead, brought this action against the appellant, city of Olympia, to recover damages for an injury caused his horse while the animal was being driven on one of the streets of the appellant city. At the place where the injury occurred the street was planked. The planks used were 3 inches by 12 inches in size and of varying lengths, were laid crosswise with the course of the street, on stringers running parallel therewith. Where the planks did not reach the entire width of the roadway, they were laid end to end and spiked to the stringers. At one of these junctions a plank was used which had been partially cut away at one corner so that, when it was laid against the abutting board it left a triangular-shaped hole some 6 inches across at its widest place, and of a depth equal to the thickness of the plank. The horse stepped into this hole, caught the heel of his shoe therein in some manner, and tore away the greater part of his hoof in his effort to extricate his foot.

The jury before whom the case was tried returned a general verdict in favor of the respondent, and returned answers to certain interrogatories submitted to them by the court as follows: '1. Was the defect in the street which caused this injury such a defect as would be noticed by ordinary passers-by not knowing of the accident? Answer: No. 2. Was the defect in the street which caused this injury such a defect as would lead an ordinary prudent man not knowing of the accident to pay particular attention to it? Answer: No. 3. If the defect in the street which caused this injury was to have been seen by an ordinary prudent man prior to the accident, was the defect such a defect as would lead him to anticipate that an accident was likely to result therefrom? Answer: No.'

The first assignment of error now open to the appellant is the ruling of the court denying its challenge to the sufficiency of the evidence to sustain a verdict in favor of the respondent. It is argued with much earnestness and force that the evidence fails to show knowledge on the part of the city either actual or constructive, of the existence of the hole causing the injury, or that the hole itself was of such a nature as would lead the city officers, in the exercise of due care on their part, to believe that an accident was likely to...