Smith v. City of Tacoma

• Decision Date: 24 July 1931
• Docket Number: 23198.
• Parties: SMITH et ux. v. CITY OF TACOMA.
• Court: Washington Supreme Court

1 P.2d 870

163 Wash. 626

SMITH et ux. v. CITY OF TACOMA.

No. 23198.

Supreme Court of Washington

July 24, 1931

Department 1.

Appeal from Superior Court, Pierce County; Ernest M. Card, Judge.

Action by J. H. Smith and wife against the City of Tacoma. From a judgment for plaintiffs, defendant appeals.

Affirmed.

W. W Mount, John E. Gallagher, and Bartlett Rummell, all of Tacoma, for appellant.

J. H Blackiston and U. E. Harmon, both of Tacoma, for respondents.

MITCHELL J.

This action in damages arose out of an accident to respondent Mrs Smith, who fell on an alleged defective sidewalk on the east side of North Ferdinand street in the city of Tacoma about half past four o'clock in the afternoon March 8, 1930.

The complaint was in the form that is common in such cases including an allegation of having presented a claim in due form and proper time to the city and the rejection of it. The answer consisted of a general denial of negligence and an affirmative answer of contributory negligence, which latter was denied by a reply on behalf of the plaintiffs. The trial resulted in a verdict for $7,000, which on the city's motion for a new trial was reduced to $4,000, else the motion for a new trial would be granted. Plaintiffs accepted the reduction, and judgment was rendered in their favor accordingly, from which judgment the city has appealed.

The facts sustaining the verdict and judgment were about as follows: Mrs. Smith was returning from a store in the neighborhood to which she had gone to trade. The sidewalk where the accident happened had been in existence and use a number of years and had fallen more or less into decay. It consisted of boards laid on stringers, the boards being eight or ten inches wide, according to the testimony of different witnesses. At the place the accident happened, two adjoining boards had swollen and raised in pyramidical fashion, some four to six inches, according to the estimates of the different witnesses. At another place, some 130 feet distant, along the same sidewalk, there was a similar raise, though probably not quite as high, and several witnesses, including Mrs. Smith, testified that there were one or more other places along the same sidewalk in which the boards were slightly swollen and raised. This condition of the sidewalk, caused by the weather of midwinter, had existed some six or eight weeks, according to the testimony of a number of witnesses, one of whom was the mail carrier who usually traveled over the sidewalk twice a day, while one witness said it had existed several months longer. Mrs. Smith was acquainted with the sidewalk, and on this occasion was returning from the store with a market bag of merchandise in one arm. She carried a cane at the time. Further, the testimony, in substance, was that she thought she had gotten over all the raised places along the sidewalk Before reaching the one, first above referred to and described, over which she fell, causing the injuries complained of, similar to the situation in McQuillan v. Seattle, 10 Wash. 464, 38 P. 1119, 45 Am. St. Rep. 799, where it was said that the plaintiff, who was allowed to recover, thought 'he had passed all the dangerous places,' etc.

Respondents presented a written claim to the city within sixty days, as required by law, in the sum of $7,500 for injuries, pain, and suffering caused Mrs. Smith. In their complaint, which was filed more than sixty days thereafter, respondents alleged damages for injuries, pain, and suffering in the sum of $15,000. At the trial, the city objected to the introduction of any testimony, because no claim had been presented to the city for the sum of $15,000, the amount mentioned in the complaint. The contention was that the amount of the claim, $7,500, could not be enlarged, because in the written claim filed the statement was made that 'neither can it be determined at this time the full extent of her injuries which may be permanent.' By the language just quoted, it is argued that the plaintiffs knew the injury might be permanent, and fixed the amount of damages accordingly in the sum of $7,500. Considering the whole of the writing, however, the particular language referred to means, in our opinion, that the amount stated was for general damages, according to reasonable knowledge at that date, without waiving the right to make further claim for permanency of injuries, if warranted by subsequent knowledge and developments. Accordingly, in the complaint, some three months after the claim was filed with the city, it was alleged 'that her injuries are much more severe than was known at the time of presenting said claim to the city council of Tacoma and now appear to be of a permanent character.' With this allegation the city appeared to be content as to definiteness, and under it there was introduced abundant evidence that the injuries are permanent, and that convincing knowledge in that respect was acquired subsequent to the date of filing the written claim with the city council. Under similar circumstances this court, in Pierce v. Spokane, 59 Wash. 615, 110 P. 537, 539, relying upon a number of authorities cited in the opinion, said:

'The single circumstance that the claimant not fully realizing the extent or her injuries, demands less, or offers to settle for less than, as shown by future developments, she should recover, will not preclude her from maintaining a suit for the damages actually sustained, and subsequently ascertained.'

With respect to other assignments of...