Rowe v. City of Ballard

• Decision Date: 23 February 1898
• Citation: 19 Wash. 1,52 P. 321
• Parties: ROWE ET AL. v. CITY OF BALLARD.
• Court: Washington Supreme Court

52 P. 321

19 Wash. 1

ROWE ET AL. v. CITY OF BALLARD.

Supreme Court of Washington

February 23, 1898

Appeal from superior court, King county; O. Jacobs, Judge.

Action by Mary Ellen Rowe and her husband against the city of Ballard for personal injuries received by the wife. From a judgment granting defendant's motion for a nonsuit plaintiffs appeal. Reversed.

W. D. Lambuth, for appellants.

P. V. Davis, for respondent.

DUNBAR, J.

This is an action brought by the appellants, Mary Ellen Rowe and her husband, Anthony Rowe, for alleged damages sustained by Mary Ellen Rowe in falling into an excavation or pit in one of the streets within the corporate limits of Ballard. The street had not been graded at this point, but the evidence shows that it had been used by wagons, carriages, and pedestrians and that well-defined roads and paths had been beaten in such street. The hole was from 6 to 10 feet deep, and from 50 to 60 feet wide, and was at the intersection of two streets, and the banks around a part of the excavation were overhanging. Mrs. Rowe, in attempting to go from church one dark night fell into this excavation, and sustained the injuries complained of. After the testimony of the plaintiff had been submitted, on motion of the respondent a nonsuit was granted by the court. The motion alleged the facts that the evidence showed that the street was full of stumps and holes, and not improved; that the plaintiff attempted to pass up the street on a dark night, without a lantern or companion; and that she should have gone around Broadway, Second avenue, and Crawford street to her home. The motion was sustained on the ground of contributory negligence.

We think the court erred in granting this nonsuit, under the rule laid down by this court in Carroll v. Water Co., 5 Wash. 613, 32 P. 609, and 33 P. 431. In that case the injury was sustained by the plaintiff by stepping into a hole in an alley, and this court held that it was immaterial whether the city had ever formally accepted the alley as a public highway, or had improved it, by grading or otherwise. The evidence in that case showed that the alley had not been graded, that it was a rough alley, but that there was a path leading down it which had been used somewhat by the inhabitants of the city. The testimony in this case we think, shows that the roads in the streets of the city of Ballard upon which this excavation existed were better defined and had been more universally traveled than the alley in the case above referred to, and it was held in that case that, inasmuch as the alley had been platted, it had been made a public highway, over which all persons had the right at any and all times to pass. But in this case, although the street had not been graded, permission had been given by the city to the public to travel the street, such permission had been accepted, and the street had been used to such an extent as to wear the roads and paths which we have before mentioned; and we know of no law which will allow a city to dig an excavation, or to establish or make any pitfall within its corporate limits, and maintain the same, without guards or warnings of any kind to the traveling public, without being held responsible in damages to the parties who, without fault, fall into the same, even though such streets may not have been formally graded. Mr. Dillon, in his work on Municipal Corporations, § 1024, lays down the rule as follows: "Where streets have been rendered unsafe by the direct act, order, or authority of the municipal corporation (not acting through independent contractors, the effect of which will be considered presently), no question has been made, or can reasonably exist, as to the liability of the corporation for injuries thus produced, where the person suffering them is without contributory fault, or was using due care. Even in those states in which a...