Pierce v. City of Spokane

• Decision Date: 20 August 1910
• Citation: 59 Wash. 615,110 P. 537
• Court: Washington Supreme Court
• Parties: PIERCE v. CITY OF SPOKANE.

110 P. 537

59 Wash. 615

PIERCE v. CITY OF SPOKANE.

Supreme Court of Washington

August 20, 1910

Department 2. Appeal from Superior Court, Spokane County; Henry L Kennan, Judge.

Action by Emma E. Pierce against the City of Spokane. From a judgment for plaintiff, defendant appeals. Affirmed.

F. B. Morrill, E. O. Connor, and George A. Lee for appellant.

Harris Baldwin, for respondent.

CROW J.

Cannon and Belt streets running north and south are intersected at right angles by Knox avenue running east and west, in the city of Spokane. An electric car line is operated on Cannon street, which is one block east of and parallel with Belt street. On May 24, 1909, the city of Spokane was improving Knox avenue by grading, curbing, and sidewalking. About 6:30 o'clock in the evening of May 24, 1909, the plaintiff Emma E. Pierce, who lived on Belt street a short distance north of Knox avenue, walked from her home diagonally across Knox avenue to take a south-bound Cannon street car. She then noticed that Knox avenue between Cannon and Belt streets was in an unsafe condition by reason of improvements then in progress. About 9:30 p. m. she returned on a north-bound car, alighted at the northeast corner of Cannon and Knox, and, to avoid walking on Knox avenue, turned in a northwesterly direction across Cannon street so as to pass over some vacant lots to her home. As she was crossing the curb line on the west side of Cannon street and about 25 feet north of the north curb line of Knox avenue she fell into an unguarded ditch, struck a cement curbing and was seriously injured. After filing a verified claim which was rejected, she instituted this action against the city for damages, and the defendant has appealed from a final judgment entered in her favor. The appellant contends that the trial court erred in denying its motions for a directed verdict, and for judgment notwithstanding the verdict. Respondent and her witnesses testified that no barricade guarded the ditch; that although signal lights were placed on Knox avenue none was placed on Cannon street; that the nearest light on Knox was 25 or 30 feet distant from the point where she fell; that the night was dark; that she did not know of the ditch on Cannon street; that she went north of Knox avenue to avoid its dangers; and that in so doing she fell into the ditch on Cannon street, without knowledge or warning of its existence. Appellant contends that the respondent was guilty of contributory negligence and that the city was not negligent. On motion for a directed verdict in favor of the defendant the evidence must be considered most favorably to the plaintiff. The record before us contains sufficient evidence introduced on respondent's behalf, to sustain a verdict in her favor. There was ample proof of negligence on the part of appellant, and we cannot hold the respondent guilty of contributory negligence as a matter of law.

The accident occurred on May 24, 1909. The Spokane city charter provides that: 'All claims for damages for personal injuries * * * alleged to have been sustained by reason of the negligence of the city, or any officer, agent, servant or employé thereof, must be presented to the city council within one month after any such injuries shall have been received, in the manner hereinafter in this section provided. * * * All claims for injuries to person or property, and all notices of such claims herein required, shall be in writing and shall state the time when and the place where such injuries were received, and must also state the cause, nature and extent of the same, the amount of damage sustained thereby and the amount for which the claimant will settle the same * * *; and the refusal or omission to present such claim and give notice, where notice is required, shall be taken to be, and shall be, a waiver of any and all damages on account of such injuries, and shall be a bar to any suit or action against the city to recover the same, or any part thereof. * * *'

On June 19, 1909, the respondent filed with the city her verified claim for $5,000 damages for personal injuries, $350 for doctor bills, and $120 for hospital fees, being $5,470 in all, and stated the nature and extent of her injuries in the following language: 'The nature and extent of said personal injuries are that by reason of the said Emma E. Pierce falling, as aforesaid, into the said ditch or trench the patella or knee cap of her left knee was fractured, the capsule of the joint of her left knee was ruptured, the ligaments attached to her left knee were strained and sprained, and the tissues surrounding the left knee were bruised, whereby and by reason whereof she endured severe nervous shock, and was caused to suffer and did suffer long and great and grievous physical pain, and will continue to suffer pain for the rest of her life, and her power of locomotion has been impaired.' This claim was rejected by the city. The respondent in her complaint alleged, and on the trial offered evidence to show, that no indication of any further injuries than those stated in her verified claim appeared either to herself or her physician, before the middle of July, 1909; but that in July, and thereafter, other injurious results of the accident developed, and that they continually increased, and were increasing at the...