Slattery v. City of Seattle, 23736.

• Decision Date: 05 August 1932
• Docket Number: 23736.
• Parties: SLATTERY et ux. v. CITY OF SEATTLE.
• Court: Washington Supreme Court

13 P.2d 464

169 Wash. 144

SLATTERY et ux. v. CITY OF SEATTLE.

No. 23736.

Supreme Court of Washington

August 5, 1932

Department 1.

Appeal from Superior Court, King County; Otis W. Brinker, Judge.

Action by John C. Slattery and wife against the City of Seattle. Judgment for plaintiffs, and defendant appeals.

Affirmed.

A. C Van Sorlen, E. I. Jones, and John A. Logan, all of Seattle for appellant.

Padden & Moriarty, of Seattle, for respondents.

STEINERT J.

The plaintiffs, husband and wife, brought this action to recover damages for personal injuries sustained by the wife in a fall upon a sidewalk in the city of Seattle. The jury returned a verdict for $1,535, upon which judgment was entered. The defendant city has appealed.

On the evening of December 24, 1930, at about 9 o'clock respondent Annie Slattery was returning home from church in company with two ladies. While walking along East Alder street, between Broadway and Tenth avenue, Mrs. Slattery tripped and fell over a wire fence which had fallen over upon the sidewalk. The evidence in support of respondents' case was in substance as follows: The night was dark and misty, and objects upon the sidewalk could be seen only with difficulty, if at all. There were no lights near the place where the accident occurred. The fence, composed of stakes and chicken wire, had been built above a small bulkhead running parallel with the sidewalk; but in the course of time the stakes had become loosened, thereby permitting the fence to sag and finally to fall upon the pavement, where it had lain for a month or more prior to the accident. Mrs. Slattery had not traveled along that portion of the street for over a year prior to the occurrence and knew nothing about the condition of the fence or sidewalk.

Appellant's evidence was to the effect that the fence had not fallen upon the sidewalk but was upright on the day in question and had been so for a long time prior thereto. The condition of the fence and sidewalk was, of course, a vital issue, not only as bearing upon the proximate cause of the accident, but also upon the question of constructive notice to the city.

Appellant's first assignment of error is upon the court's refusal to grant its motion for a directed verdict. The contention is that there was no credible evidence to establish notice to the city, either actual or constructive, regarding the condition of the sidewalk. We do not agree with this contention so far as constructive notice is concerned. The husband testified that the fence had lain upon the sidewalk for over a month. While the jury was not bound to believe his testimony, he being an interested witness, yet they were privileged so to do. He was, moreover, corroborated by a witness who testified that the same condition had existed since the preceding Thanksgiving. Another witness testified that the fence was lying on the sidewalk on the morning after the accident. The evidence thus made that issue a question for the jury.

The second assignment of error is upon the giving of the court's instruction No. 17, as follows: 'You are instructed that in determining whether the city exercised reasonable care in keeping the sidewalk in question reasonably safe for travel, that it was the duty of the city to take into consideration the fact that such sidewalk might lawfully be used at night and at times when the atmospheric conditions were such as might impede the vision of persons walking along said sidewalk, and the care of the city over its sidewalks must at all times be reasonably commensurate with such conditions as might reasonably be expected to exist.'

Appellant contends that this instruction was a comment on the evidence and that it also imposed a greater care upon the city at certain times than at others, whereas its duty, as it contends, was at all times one of reasonable care.

When exception was taken to this instruction, no suggestion was made that it was a comment on the evidence. Under rule VI, Rem. 1927 Supp. § 308-6, an exception must be sufficiently specific to apprise the judge of the point of law in dispute. Davis v. North Coast Transportation Co., 160 Wash. 576, 581, 295 P. 921. Appellant's exception was insufficient to raise this point.

As to the degree of care which a municipality must exercise in keeping its streets safe for ordinary travel, the rule undoubtedly is that it must be reasonable care. This is the constant standard. While the amount of care may vary under different circumstances, the degree of care remains the same at all times. Ferguson v. Yakima, 139 Wash. 216, 246 P. 287, 48 A. L. R. 431; Gabrielsen v. Seattle, 150 Wash. 157, 272 P. 723, 63 A. L. R. 200; 7 McQuillan on Municipal Corporations (2d Ed.) § 2911.

It is plain from the quoted instruction, as well as from several other instructions given to the jury, that the court attempted to, and did, announce the correct rule.

Appellant relies on the case of Morehouse v. Everett, 141 Wash. 399, 252 P. 157, 58 A. L. R. 1482, as sustaining its contention in this respect. The opinion in that case condemned a portion of an instruction which imposed a higher degree of care upon the city under varying conditions of traffic. The court, in announcing the rule relative to the care required, said on page 414 of 141 Wash., 252 P. 157, 162:

'What would be reasonable care under one...