Prather v. City of Spokane

• Decision Date: 02 September 1902
• Citation: 70 P. 55,29 Wash. 549
• Parties: PRATHER v. CITY OF SPOKANE.
• Court: Washington Supreme Court

70 P. 55

29 Wash. 549

PRATHER v. CITY OF SPOKANE.

Supreme Court of Washington

September 2, 1902

Appeal from superior court, Spokane county; Thos. H. Brents, Judge.

Action by L. H. Prather against the city of Spokane. From a judgment for plaintiff, defendant appeals. Affirmed.

John P. Judson and A. H. Kenyon, for appellant.

C. S Voorhees and Reese H. Voorhees, for respondent.

MOUNT J.

Action for personal injuries. Defendant below objected to the introduction of evidence on the part of the plaintiff upon the ground that the complaint does not state facts sufficient to constitute a cause of action. This objection was overruled, and defendant excepted. This ruling of the court is the only error assigned. The paragraphs of the complaint necessary to be considered are as follows:

'(3) That during all of said times, and for a long time prior thereto, there were within said city a certain street running north and south therethrough, called and known as 'Division Street,' and a certain avenue running east and west therethrough, called and known as 'Augusta Avenue,' both of which said street and avenue being public thoroughfares belonging to and in the charge and control of said city.

'(4) That during all of said thimes, and for a long time prior thereto, the said city had made and constructed a certain public thoroughfare therein, called and known as a 'cinder path,' running north and along the east side of said Division street to the north side of said Augusta avenue at their intersection, and thence east on and along the north side of said Augusta avenue, over and upon which cinder path the said city invited and required all persons to travel who might travel on said street or avenue by means of bicycles, which cinder path was constructed by and under the direction of said city, and during all of said times, and for a long time prior thereto, was maintained by it for said purpose.

'(5) That during all of said times, and for a long time prior thereto, said cinder path, at the place where the same turned from said street east onto said avenue, was carelessly, negligently, and defectively constructed and maintained by said city, and dangerous to travelers thereon, in this: That said turn was a sharp right-angle turn, made within about four feet of where there existed the street gutter and board sidewalk, also constructed and maintained by said city for a long time prior to all of said times mentioned herein, at the northeast corner of the crossing of said street and said avenue, which street gutter was about eight inches below said turn, from which gutter arose said board sidewalk about one foot in height, both of which said gutter and sidewalk lying immediately north of said turn and in line with said cinder path going north and transverse to the north and south line of said cinder path; that immediately upon turning east at said place said cinder path was constructed on ground which arose to an elevation of about eighteen inches above said turn, and thence proceeded east at that elevation; that said cinder path at said place was lower than the adjacent parts thereof, and dim and indistinct, and on account of said construction and maintenance of said cinder path, curb, and gutter in the manner and under the condition hereinbefore described the use of said cinder path was dangerous and unsafe, and a person traveling north thereon by bicycle at any time in the dark of an evening could not see, or know from its appearance, that there was a turn in said cinder path at said place, nor see or know of said street, gutter, or sidewalk beyond, any would be in danger of riding on past said turn into said gutter, and against said sidewalk.

'(6) That during all of said times, and for a long time prior thereto, to wit, for the period of six months, the said city negligently and carelessly failed, neglected, and refused to repair, remedy, or in any wise to correct said defective, dangerous, and unsafe conditions of said curb, gutter, and cinder path so constructed and maintained by it as aforesaid, and carelessly and negligently failed, neglected, and refused to place or maintain any barrier, sign, light, or other means at said turn or elsewhere to show or notify travelers on said cinder path where said turn was, or to protect such travelers from injury on account of said dangers and defects by running into said street gutter and against said sidewalk, and that because thereof, prior to the injury to this plaintiff herein recited, a great number of other persons had been injured at the same place and in a similar manner, and that because of said long continuance of said defective, dangerous, and unsafe conditions of said curb, gutter, and cinder path, and the occurrence of said injuries to other persons, defendant had notice of said defective, dangerous, and unsafe conditions, and ought to have known thereof.

'(7) That on the 3d day of November, 1899, at about six o'clock p. m., it then being dark, plaintiff was rightfully traveling on said cinder path on a bicycle, going north to his home in said city, having no knowledge or notice of any kind of any of said defects in or negligent construction of said cinder path, or said curb or gutter, or any danger therefrom, and on account of said negligent and defective construction of said cinder path, and through and because of the defective and negligent construction of said curb and gutter, and through and because of defendant's negligence in leaving said curb and gutter, constructed, as hereinbefore described, close to and in the line of said cinder path, as hereinbefore set forth, and through and because of defendant's neglect, failure, and refusal to repair, remedy, and correct said defective, dangerous, and unsafe condition of said curb, gutter, and cinder path, as hereinbefore set forth, and through and because of defendant's said negligence in failing to place or maintain proper or any such signs, barriers, lights, or other means of protection at said turn in said path, plaintiff rode his said bicycle into said street gutter and against said board sidewalk, throwing him with great violence upon and against said sidewalk, striking his head violently thereon, greatly bruising and cutting his head and face, causing injury to plaintiff's

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