Shearer v. Town of Buckley

• Decision Date: 25 March 1903
• Parties: SHEARER v. TOWN OF BUCKLEY.
• Court: Washington Supreme Court

72 P. 76

31 Wash. 370

SHEARER v. TOWN OF BUCKLEY.

Supreme Court of Washington

March 25, 1903

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

Action by B. Shearer against the town of Buckley. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

A. R. Titlow, for appellant.

F. R Baker, for respondent.

HADLEY J.

Respondent brought this suit against appellant to recover damages on account of injuries alleged to have been received by reason of a defective street. It is alleged that on the 3d day of March, 1901, and for a long time prior thereto, in A street in the town of Buckley, in the line of travel thereon, and at or near the intersection of said street with the south line of Main street in said town, there was a large and dangerous hole or trench, of which the said town, through its officers and employés, had notice at the time and for several months prior thereto; that said town, through its said officers and employés, upon said date and for several months prior thereto, had knowingly and negligently permitted said hole or trench to remain open and without proper protection or notice to travelers, and had permitted the street at said place to become and remain out of repair and dangerous to travel; that on said date respondent, with other persons, was riding along said street in a light wagon, drawn by a team of gentle horses, which were being carefully driven, and that respondent and the other persons in the wagon were wholly unaware of the existence of said hole or trench, the same being then filled and covered with muddy water; that, without any fault or negligence on the part of respondent or of the other persons in said wagon, the team and wagon were driven from the west along said Main street, and turned to go south along said A street, when the front wheels of the wagon suddenly dropped into said hole, throwing the occupants of the wagon out, and throwing respondent upon the tongue and whiffletrees of the wagon; that the horses were thereby scared, became uncontrollable, and ran rapidly along said A street, carrying and dragging respondent for the distance of about half a block, when they collided with a tree by the side of the street, causing the neck yoke to be broken and the tongue to drop; that respondent was thereby violently thrown to the ground and against some object whereby he was bruised, wounded, rendered unconscious, and received severe injuries, which are particularly described in the complaint. Respondent alleges his damages to be $1,000, based upon loss of time, suffering of body, and great inconvenience. No claim for damages is based upon permanent injuries. A demurrer to the complaint was overruled, and thereupon appellant answered with general denials, and affirmatively alleged contributory negligence on the part of respondent and of his traveling mate, a lady who was driving the team. The trial was had before a jury, which resulted in a verdict for $325 in favor of respondent. Appellant moved for a new trial, which was denied, and judgment was entered for the amount of the verdict and for costs. This appeal is from said judgment.

It is assigned that the court erred in overruling the demurrer to the complaint. Appellant is a municipal corporation of the fourth class, and it is urged that, as such, it cannot be made liable for personal injuries arising from defective streets, unless there is some statute directly declaring such liability. In Sutton v. Snohomish, 11 Wash. 24, 39 P. 273, 48 Am. St. Rep. 847, the same argument was advanced by the appellant in the case as applicable to cities of the third class. The court in that case, at pages 27 and 28, 11 Wash., and page 274, 39 Pac., 48 Am. St. Rep. 847, said: 'It must be conceded that there is no legislative enactment declaring these cities liable for such negligence as is alleged in the complaint in this action, and it may also be conceded that the appellant city cannot legally be made to respond in damages for negligence in the discharge of purely governmental duties. But it does not necessarily follow from these propositions that the city is exempt from liability in the present case. * * * We think that where, as here, a city has exclusive control and management of its streets, with power to raise money for their construction and repair, a duty (when not expressly imposed by charter) arises to the public, from the character of the powers granted, to keep its streets in a reasonably safe condition for use in the ordinary modes of travel, and that it is liable to respond in damages to those injured by a neglect to perform such duty.' The court conceded in the above opinion that there is want of harmony among the decisions of the courts upon the question, but declared its belief that the weight of authority is in favor of the view adopted. The principle decided in that case is against appellant's contention here, and makes municipal corporations of the fourth class as liable to respond in damages for injuries from defective streets as a city of any other class.

It is further urged under this assignment that it appears upon the face of the complaint that the negligence of appellant in not filling up the hole in the street was not the proximate cause of respondent's injuries. We do not agree with appellant. We think the allegations of the complaint which are substantially set forth above are such that it must follow, in ordinary reasoning from cause to effect, that the injuries received were the natural and probable consequence of neglect to repair the street. It is true, there was a succession of causes; but that which started them all in motion, as shown by the complaint, was the negligence of appellant to cause this hole to be filled. Next followed the sudden dropping of the wagon wheels into a deep and dangerous hole, the nature of which was concealed by the standing and muddy water which covered and filled it. This was followed by the natural circumstance that the team of horses, although ordinarily gentle, became frightened and ran, and respondent was thereby injured. Thus the chain of circumstances leading backward from the final effect connects directly with appellant's negligence, and it is not too remote to be called the controlling, and therefore the proximate, cause.

It is also insisted that the complaint, upon its face, shows contributory negligence to such a degree that the demurrer should have been sustained. We do not think so, and we find no error in the ruling upon the demurrer.

It is next assigned that the court erred in denying appellant's motion for a nonsuit. This hole was immediately at the lower end of an apron or planked inclined way in A street, leading south from the planked driveway along Main street. The team went leisurely traveling east along Main street to A street and then turned and went down this incline to go south along A street. The evidence showed that the depth and extent of the depression were concealed by the standing water, and when the front wheels reached the foot of the inclined way they plunged by a sudden drop into this hole, while the rear wheels were still elevated upon the incline, and thus the occupants were suddenly thrown forward; and the evidence introduced by respondent showed that he was thrown out upon the whiffletrees, and that the horses immediately jumped and ran. It is insisted that the hole was simply a depression in black, muddy soil, filled after a rain with mud and water, due alone to the operation of nature's elements, and that appellant had no notice thereof. ...