Short v. City of Spokane

• Decision Date: 28 December 1905
• Citation: 41 Wash. 257,83 P. 183
• Parties: SHORT v. CITY OF SPOKANE.
• Court: Washington Supreme Court

83 P. 183

41 Wash. 257

SHORT v. CITY OF SPOKANE.

Supreme Court of Washington

December 28, 1905

Appeal from Superior Court, Spokane County; George W. Belt, Judge.

Action by B. K. Short against the city of Spokane. From an order granting a new trial, defendant appeals. Affirmed.

F. M Dudley and Charles P. Lund, for appellant.

J. M Geraghty and Alex M. Winston, for respondent.

DUNBAR J.

This action was brought by plaintiff to recover damages for alleged personal injuries on account of an alleged defective condition of a sidewalk in the city of Spokane. The complaint contained the ordinary allegations of negligence on the part of the city. Damages were asked in the sum of $5,000. The defendant denied the material allegations of the complaint and pleaded contributory negligence on the part of the plaintiff, and that the claim of plaintiff was not filed within the time required by the city charter. By replication the affirmative defenses were denied. The case went to trial before a jury, resulting in a verdict for defendant. The plaintiff filed a motion for a new trial, which was granted by the court. From this order the defendant has appealed.

The errors alleged are that the court erred in refusing to sustain defendant's motion for a nonsuit at the close of plaintiff's case, in refusing to sustain defendant's motion made at the close of the case to direct a verdict for defendant, in setting aside the verdict of the jury for defendant, and in granting a new trial. This judgment would probably have to be affirmed in any event, for the reason that it does not appear from the record, nor indeed from the briefs of the respective parties, upon what ground the new trial was granted. It might have been error cause the court had concluded that error was committed in giving or refusing to give instructions, or it might have been because the court concluded that the verdict was not justified by the weight of the testimony. But, in view of the possibility of a new trial, we think it advisable to pass upon some of the errors which are claimed by the respondent to have been committed by the court in the giving and refusing to give instructions, and upon the contention of the appellant that, in any event the new trial should not have been granted, for the reason that the defendant's motion for a nonsuit, at the close of the plaintiff's case, and at the close of the whole case, should have been granted by the court. If this contention is true, then the alleged errors in regard to the instructions would be immaterial. But, from an examination of the testimony, we are satisfied that the motion for a nonsuit was properly denied. Section 220 of article 14 of the charter of the city of Spokane among other things, provides that 'all claims for personal injuries or for injuries to property, alleged to have been sustained by reason of the negligence of the city or any officer, agent, servant, or employé thereof, must be presented to the city council within one month after any such injuries shall have been received in the manner hereinafter in this section provided: provided, however, that in addition to the filing of the claim as hereinabove provided, where such injuries are alleged to have been caused by the existence of snow or ice on a street, highway, sidewalk, bridge, or crosswalk, notice of such injury, in writing, signed by the person injured, or the owner of the property injured, or by someone on his or her behalf, must be filed with the city clerk within three days after said injury shall have been sustained.' From an investigation of the complaint in this case, we fail to perceive that there is any allegation that the injury was caused by the existence of snow or ice, but the mention of snow and ice in the complaint was incidental, the gist of the negligence alleged being that a plank in the sidewalk was broken in two, a portion of said plank falling through to the ground, and the remaining end of the plank, for several feet from the break, was sunk below the boards at the sides of it; that there was no support for the broken end of the plank, and said plank would bend easily under slight pressure; that by reason of such condition, said plank and walk were dangerous and defective, which condition had existed for a long time prior to the date of the injury to this plaintiff, and was known, and by reasonable care should have been known,...