Richardson v. City of Seattle

• Decision Date: 04 August 1917
• Docket Number: 13914.
• Court: Washington Supreme Court
• Parties: RICHARDSON v. CITY OF SEATTLE.

166 P. 1131

97 Wash. 521

RICHARDSON v. CITY OF SEATTLE.

No. 13914.

Supreme Court of Washington

August 4, 1917

Department 2. Appeal from Superior Court, King County; Samuel H. Steele Judge.

Action by R. A. Richardson against the City of Seattle. From a judgment for plaintiff, defendant appeals. Affirmed.

Hugh M Caldwell and James A. Dougan, both of Seattle, for appellant.

Gill Hoyt & Frye and Frank E. Boyle, all of Seattle, for respondent.

HOLCOMB, J.

This case arises from an injury received by respondent while he was driving a one-horse wagon down a very steep hill on a roadway known as Atlantic street in Seattle. The injury occurred on July 21, 1910, at a point about 30 feet east of the intersection of Atlantic street with Ninth Avenue So. The left front wheel of respondent's wagon dropped into a chuck hole in the street at the bottom of a steep descent causing the wagon to lurch and tip, throwing respondent to the ground with great force and violence, and causing the injury set forth in his complaint. The street is open, but not graded. The beaten track or roadbed proper is not straight, but curved. The grade easterly from the point of the accident for a short distance is from 15 to 20 per cent. to a level place in Atlantic street, and thence easterly to Tenth Avenue South the grade is about 25 per cent. Tenth Avenue South, at the point of its intersection with Atlantic street, is graded, and the approach to Atlantic street leveled off, so that the grades of the two streets conform. Ninth Avenue South was graded to a point where it intersects Atlantic street. Respondent's testimony tended to show that the chuck hole which caused his wagon to lurch and tip was filled at the time with 'soupy' mud, so he could not tell that it was deep and dangerous. Respondent started down Atlantic street from Tenth Avenue South to Ninth Avenue So. The first half of the distance between those avenues is very steep, and the surface of the road is hard and smooth, so that an ordinary wagon wheel would slide over the same, and respondent for that reason used a rough lock on a rear wheel of his wagon to hold it back on the steepest part of the descent. At the middle of the block there is an alley; the street is fairly level at that point, and from there on down to Ninth avenue the street is not so steep. The surface of the ground at that time was soft and wet, so that, when respondent came down over the steepest portion of the road to the level place, he removed the rough lock and applied the ordinary brake to his wagon, as in such ground the wheels would take hold. He was familiar with this street, had traveled over it for years but had not been over this portion of the street for a period of a month or 6 weeks, and testified that the road was all right at the bottom of the hill the last time he was over it, in June preceding the accident. There was testimony that the street commissioner of the city had been notified, on or about July 4, 1910, about 14 days before the accident, of the existence of this chuck hole and the bad condition of the street. There was also evidence that another witness had slipped and fallen into this hole on or about July 4, 1910; and another witness, about 3 or 4 weeks before respondent was injured, had slipped into this chuck hole. Another witness had had his wagon tipped over at this spot about 10 days before respondent was injured. This witness also testified that there was nothing about the place to put him on his guard. Another witness testified that an express wagon had tipped over at this same spot about 10 days before respondent was injured. There was testimony that in the previous March no chuck hold was there.

It appears from the evidence that an addition, platting this street and dedicating it to the public, was platted on November 25, 1872, and filed for record in the official plat book of King county, and another addition, adding to some of these streets and alleys, was made, dedicating streets and alleys therein to the public, on June 16, 1875, and filed for record in the official book of plats in the office of the county auditor. At that time no approval of such plats on the part of the municipal authorities was required by the law in force. Thonney v. Rice, 43 Wash. 708, 86 P. 713. Atlantic street appeared on those plats as Town street, Ninth Avenue South was platted as South Eleventh street, and Tenth Avenue South as South Twelfth street. In the year 1903, the city graded Tenth Avenue South, the street running at right angles to Atlantic street, and constructed sidewalks along it. At the intersection of Tenth Avenue South with Atlantic street, the city leveled off and graded the approach to Atlantic street. In 1895 or 1896 the city council by ordinance changed the names of certain streets in Seattle. Town street was changed to Atlantic street, South Eleventh street was changed to Ninth Avenue South, and South Twelfth street to Tenth Avenue So. Thereafter, at the intersection of the streets, the city maintained signs marking the streets. Houses along Atlantic street were numbered. A sidewalk was constructed along the south property line, not shown to have been constructed by the city, but shown to have been in constant use. Steps had been built at the west end of Atlantic, adjoining Ninth Avenue So. Both the sidewalk and road had been kept in repair by some one. Atlantic street had never been closed to traffic, but, on the contrary, had been openly, notoriously, and continuously used by the public for a period of time certainly exceeding 10 years, possibly 30 years, according to the testimony. The city had never rejected or repudiated the street, but had never graded and improved it.

1. Appellant contends that the city was not required to keep in repair the place where respondent was hurt, although in a wagon track within the limits of the city. In support of this contention it cites these cases: Ottolengui v Seattle, 59 Wash. 37, 109 P. 206; Tait v. King County, 85 Wash. 491, 148 P. 586; Downend v. Kansas City, 156 Mo. 60, 56 S.W. 902, 51 L. R. A. 170; Johnson v. St. Joseph, 96 Mo.App. 663, 71 S.W. 106; Willey v. People, 36 Ill.App. 609; Moore v. Cape Girardeau, 103 Mo. 470, 15 S.W. 755. The cases from our own court we do not consider as supporting appellant's contention. In Tait v. King County and Ottolengui v. Seattle, the effect of the holding was merely to this extent: That where a highway is dedicated to the public and approved by a board of county commissioners or a city council, the duty is not thereby cast upon the county or city of keeping every street or avenue, dedicated by the plat to the public use, open for...