Saylor v. City of Montesano

• Decision Date: 02 March 1895
• Citation: 39 P. 653,11 Wash. 328
• Parties: SAYLOR v. CITY OF MONTESANO.
• Court: Washington Supreme Court

39 P. 653

11 Wash. 328

SAYLOR v. CITY OF MONTESANO.

Supreme Court of Washington

March 2, 1895

Appeal from superior court, Chehalis county; Mason Irwin, Judge.

Action by Mary A. Saylor against the city of Montesano for personal injuries. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

Hoyt C.J., dissenting.

Austin E. Griffiths, for appellant.

Linn Bridges & McKinlay, for respondent.

ANDERS, J.

While the respondent was driving up to the sidewalk on D street one of the principal thoroughfares in the city of Montesano for the purpose of taking a person into her carriage, her horse stepped upon one end of a piece of plank, which, with other sticks and rubbish, was lying several feet from the walk, thereby causing the other end to suddenly rise and penetrate its body to such an extent that it soon after died from the effects of the injury. She presented her claim for damages thus sustained to the city council, but that body refused to pay the same or any part thereof. Thereafter she sued the city for the value of the horse and expenses incurred in endeavoring to cure it, basing her action on the negligence of the city in causing and permitting the piece of plank which caused the injury to be and remain in the street. A demurrer to the complaint was overruled, whereupon the city answered, denying the allegations of the complaint generally and setting up affirmatively that D street was in safe condition for travel by all persons exercising reasonable care; that, if there were any sticks in the street at the time mentioned in the complaint, they did not constitute a defect therein, nor an obstruction to travel; that the sticks were few in number, and from 6 inches to 4 feet in length, and were not lying on the traveled portion of the street, but near the sidewalk, 10 or 20 feet from the traveled portion of it, and in plain view of any person traveling on D street; that plaintiff left the traveled portion of the street, and drove over the unused side thereof, and over the sticks mentioned, without cause; and that the city had no notice that the sticks were there, and authorized no one to put them there. The plaintiff denied the new matter of the complaint, and, upon the issues joined, a trial was had, resulting in a verdict and judgment for plaintiff, from which judgment the defendant prosecutes this appeal.

The appellant is a city of the third class, organized and existing under and by virtue of a general law of this state. That law does not specifically make such cities liable in damages for injuries arising from obstructions or defects in the streets; hence it is assumed that such an action as the one at bar cannot be maintained, and it is therefore asserted that the demurrer to the complaint should have been sustained. This question was presented for our determination in the recent case of Sutton v. City of Snohomish (decided Jan. 31st; not yet officially reported) 39 P. 273; and we there came to a conclusion at variance with the position here attempted to be maintained by the appellant. In the decision in that case we adhered to the doctrine announced by our territorial supreme court in Hutchinson v. City of Olympia, 2 Wash. T. 314, 5 P. 606, and by the supreme court of the United States in Barnes v. District of Columbia, 91 U.S. 540, and in other cases, and in fact, as we think, by the majority of the courts of the states outside of New England; and it is not necessary to here reiterate what was there said. Judge Dillon, after an exhaustive review of the authorities upon this subject, expresses the conclusion reached by him as follows. "But where the duty to repair is not specifically enjoined, and an action for the damages caused by defective streets is not expressly given, still both the duty and the liability, if there be nothing in the charter or in legislation of the state to negative the inference, have often, and, in our judgment, properly, been deduced from the intrinsic nature of the special powers conferred upon the corporation to open, grade, improve, and exclusively control public streets within their limits, and from the means which, by taxation and local assessments, or both, the law places at its disposal to enable it to discharge this duty." 2 Dill. Mun. Corp. § 1018.

The motion for a nonsuit was, in our judgment, properly denied. The grounds of the motion, exclusive of those which were included in the demurrer, were (1) that, upon the pleadings, the defendant was entitled to recover; and (2) that the plaintiff failed to make a case for the jury.

In respect to the first proposition, it is claimed that the respondent based her cause of action upon the alleged negligent act of the street commissioner in putting the alleged obstruction in the street; and it is insisted that in no event is the city liable for the negligence of such officer. We think, however, that the city is liable for the negligent acts of its street commissioner done in the discharge of his official duties, but, whether it is or not it certainly is liable for its own neglect of duty. An examination of the...