Shannon v. City of Tacoma

• Decision Date: 28 December 1905
• Citation: 83 P. 186,41 Wash. 220
• Court: Washington Supreme Court
• Parties: SHANNON et al. v. CITY OF TACOMA.

83 P. 186

41 Wash. 220

SHANNON et al. v. CITY OF TACOMA.

Supreme Court of Washington

December 28, 1905

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Helen E. Shannon and another against the city of Tacoma. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

Govnor Teats, for appellants.

O. G Ellis, J. J. Anderson, and R. E. Evans, for respondent.

FULLERTON, J.

The appellant Helen E. Shannon, while walking along a sidewalk in the city of Tacoma, received an injury to her foot, and this action was brought to recover therefor. In their complaint the appellants allege that the respondent city negligently allowed the walk where the injury occurred to become worn out and decayed and otherwise out of repair, and that there was at the time of the accident a hole therein some eight inches wide and three feet long; that the appellant Helen E Shannon, while walking along the same in the nighttime stepped into the hole, caught her foot therein, and strained and tore away the ligaments of the foot and leg, leaving her permanently crippled and maimed. It was further alleged that the defective condition of the walk was known to the city authorities long prior to the injury, and that they negligently failed to repair the same. Issue was taken on the allegations of the complaint, and a trial had which resulted in a verdict and judgment for the city.

The first error assigned is predicated on the cross-examination of the witness Ada Shannon. It was shown in her examination in chief that she was the daughter of the plaintiffs and accompanied her mother at the time of the accident. The following appears in her cross-examination: 'Q. You had gone along this sidewalk before this night? A. Yes, sir. Q. And knew something of the condition of the sidewalk? Mr Teats: Objected to as immaterial. The Court: The objection overruled. Mr. Teats: Plaintiff notes an exception. Q. You knew something of the condition of that sidewalk, didn't you? A. Yes, sir. Q. As you told Mr. Teats, you knew it was in a bad condition? A. Yes, sir. Q. How did you happen to go along that way that night? A. I don't know for any certain reason, only that is a little---- Mr. Teats: That is objected to as absolutely immaterial. [After argument.] The Court: The objection overruled. Mr. Teats: Plaintiff notes an exception. Q. I will ask you how you happened to take that street that night? A. We didn't decide any certain way we would go, but I knew the sidewalks on Anderson and Seventh both were poorer than on Pine street. Q. But you often went that way? A. No; up Oak, to the bicycle path. Q. That was the way you and your family went? A. Yes, sir. Q. As a matter of fact didn't you usually take the route you did that night? A. I did, when alone. Q. Didn't you take that with your mother? A. I don't think so. Q. Didn't you ever go? A. We didn't go there very often, and I don't think so. Q. Why would you and your mother select that route if you thought it was worse? Mr. Teats: That is objected to as immaterial. Mr. Ellis: I want to test the witness' memory and accuracy. Mr. Teats: She stated that she went that way going to school. The Court: The objection overruled. Mr. Teats: Plaintiff notes an exception. Q. It was just as near across that way as the other way to Mrs. Mather's? A. Yes, sir.'

It is contended that this was error because it permitted counsel to examine upon an immaterial matter prejudicial to the appellants. It is argued that a person has the right to travel upon any of the open sidewalks of a municipality, and that a person so doing cannot be guilty of contributory negligence, even though the walk be defective or dangerous, and the person traveling upon it knows it to be so. Such, however, is not the rule. While the fact that a person travels along a sidewalk known by him to be defective and dangerous does not of itself convict him of contributory negligence in every case where injury occurs, yet it is always some evidence of such negligence, and may be shown to the jury in support of a plea of contributory negligence. Where the danger was slight and trivial, the probative effect of the fact is likewise slight, but the proof increases as the dangers increase, and, when it reaches the stage where an attempt to pass over the way would of itself plainly and unequivocally amount to the want of ordinary care and prudence, contributory negligence is established as a matter of law. But generally the presumption arising from the fact is not conclusive. It is open to question whether the incurring of the probable and possible hazard of using the way is consistent with the exercise of ordinary care and prudence. In such cases the question becomes a mixed one of law and fact, and is for the determination of the jury under proper instructions. But it is not the rule that one may use a way which he knows to be dangerous with impunity; he must use care commensurate with the danger, and unless he does so he is guilty of contributory negligence and cannot recover for an injury suffered because of the dangerous condition of the way, no matter how negligent the authorities whose duty it was to repair it may have been. There is nothing in the case of Jordan v. Seattle, 30 Wash. 298, 70 P. 743, that is contrary to this rule. It was not there said, nor was it intended to be said, that contributory negligence could not be established by showing that the injured plaintiff had used a defective or dangerous way without the exercise of ordinary care. It may be that the questions objected to were immaterial because there was no showing or offer to show that the witness had imparted her knowledge of the defect in the walk to her mother, prior to the time of the injury, but this does not require a reversal of the case. The answers to the questions were not prejudicial to the appellants. If they reflected upon either party, it was upon the respondent, and error without prejudice is not a ground for reversal.

With reference to the witness Teats the following appears in the record: 'Mr. Teats: On agreement of counsel that he will not enforce the rule, that he will not prevent me from addressing the jury, I would like to be sworn to identify Identification B. I don't like to do this, but it seems I am the only witness on the point. Govnor Teats, a witness on behalf of plaintiffs, being first duly sworn, testifies as follows: About--Mr. Ellis: Just a moment. Counsel has taken the stand for the purpose of identifying this piece of board marked Identification B. Now, counsel, of course, will proceed to make his statement without questions, and we insist, if he does, the first thing he does is to qualify by stating positively that he knows exactly where the accident occurred, before he is allowed...