Smith v. City of Seattle

• Citation: 20 Wash. 613,56 P. 389
• Court: United States State Supreme Court of Washington
• Decision Date: 02 March 1899
• Parties: SMITH v. CITY OF SEATTLE.

56 P. 389

20 Wash. 613

SMITH v. CITY OF SEATTLE.

Supreme Court of Washington

March 2, 1899

Appeal from superior court, King county; E. D. Benson, Judge.

Action by Mary D. Smith against the city of Seattle. From a judgment for plaintiff, she appeals. Reversed.

Smith &amp Cole, for appellant.

W. E Humphrey and Edward Von Tobel, for respondent.

GORDON C.J.

This action was to recover damages for the removal of the lateral support of plaintiff's land. The jury returned a verdict in her favor for $150. Being dissatisfied with the amount of the recovery, plaintiff moved for a new trial which motion was overruled, and she has appealed.

Respondent urges as a preliminary consideration that the complaint does not state a cause of action, but we think it cannot be permitted to urge the point. This cause was here on a former appeal by the plaintiff from an order of the lower court which sustained a general demurrer to the complaint. (See Smith v. City of Seattle, 18 Wash. 484, 51 P. 1057 for a full statement of the case.) That order was reversed, this court concluding that the complaint was sufficient. It is true that the ground upon which the respondent now seeks to attack the complaint was not presented on the former appeal, and, inasmuch as the point was not presented nor passed upon at that time, counsel for the city insist that they have a right to urge it now. While it is true that the point was not raised on the former appeal, it is patent that it might have been, and we think it would be a bad and unwarranted practice to permit the point to be urged now. In support of its general demurrer, respondent was entitled to urge the insufficiency of the complaint from any standpoint, and must be held to have waived every point not presented at the former hearing. Any other practice would result in cases coming here piecemeal, delaying litigation, increasing the expense to parties litigant, and burdening the court with unnecessary labor. It would be productive of much mischief, and cannot be tolerated. Respondent's counsel cite, in support of their position, a single case,--Davis v. Krug, 95 Ind. 1,--which we cannot follow, and the court in that case frankly admitted that the contrary view from that held by them is 'supported by many respectable authorities.'

It is appellant's contention that the case was submitted to the jury upon an erroneous theory, and in this contention we think she is borne out by the record. Instructions 1 and 3 were as follows: 'If you believe from the evidence in this cause that the damage, if any, to plaintiff's property, was caused wholly or in material part by the grading of and removing dirt from Mill street (now Yesler way), and at the time of said grading or removal a street-grading engineer and contractor of reasonable experience, knowledge, and prudence would, by reasonable inspection of the street grade, have known such grading of said Mill street was liable to injure the property of plaintiff by causing the same to slide, then you will bring in a verdict for plaintiff for such sum as plaintiff is shown by the evidence to have been injured, not exceeding the amount demanded in her complaint.' 'You are not allowed to speculate or guess as to whether the acts of the city caused this injury, but, before plaintiff can recover in this case, not only that the acts of defendant city actually caused the injury, but that such acts, or some of them, were not such as a reasonably prudent and competent street grader and engineer would have done under like circumstances.' In these and other instructions the question to which chief prominence is given is whether or not a street-grade engineer or contractor of reasonable experience and prudence would have known that the grading of Mill street was liable to injure the property of plaintiff by causing the same to slide. We think it a just criticism of the charge to say that it assumed a doubt where none existed. The improvement of Mill street was authorized by the city council in the summer and fall of the year 1887. Section 3 of the ordinance of July 16, 1887, providing for the grading of the street, is as follows: 'That said grading and building of sidewalks be done under the supervision and direction of the city surveyor, and the said improvements shall be completed on or before the 15th of November, 1887.' On August 22d of that...