Spencer v. Town of Arlington

• Citation: 94 P. 904,49 Wash. 121
• Court: United States State Supreme Court of Washington
• Decision Date: 28 March 1908
• Parties: SPENCER v. TOWN OF ARLINGTON et al.

94 P. 904

49 Wash. 121

SPENCER v. TOWN OF ARLINGTON et al.

Supreme Court of Washington

March 28, 1908

Appeal from Superior Court, Snohomish County; W. W. Black, Judge.

Personal injury action by A. L. Spencer against the town of Arlington and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded for a new trial.

Dunbar J., dissenting in part.

Bell & Austin, L. N. Jones, and Cooley & Horan for appellants.

Hulbert & Husted, for respondent.

HADLEY C.J.

This is an action to recover damages for personal injuries alleged to have been received within the corporate limits of the town of Arlington. The plaintiff claims that the injuries were sustained by him as the result of stepping into a hole within the limits of one of the public highways of the town. He alleges that the hole was several feet deep, about eight inches square, and boxed with timbers; that the town left the hole open and in a dangerous condition for travelers upon the highway, in that it was unprotected and unguarded, without any signal placed about it to warn persons of the danger. The Jim Creek Water, Light & Power Company, a corporation, was joined with the town as a defendant in this suit, and the plaintiff alleges that said corporation caused the hole to be made about May, 1906, and that from that time until August 21, 1906, the date of the accident to the plaintiff, both the town and said corporation suffered the hole to remain open and unprotected. The town claims that the hole was not situated upon any street or highway within the corporate limits of the municipality, but that it was located upon land of the Northern Pacific Railway Company about 20 feet west of the west line of Third street, which land had never been dedicated as a public street. The water and light company makes the same claim, and also claims that it constructed the box or hole upon said land by permission of the railway company, that it was constructed to protect gate valves for water pipes, and that, if the hole was uncovered at the time of the accident, it was but recently so, and was open without the company's knowledge. The cause was tried before a jury, and a verdict was returned in favor of the plaintiff against both defendants, for the sum of $9,000. The defendants moved for a new trial, which was denied. Judgment was entered in accordance with the verdict, and the defendants have appealed.

Appellants contend that the court erred in overruling their challenge to the legal sufficiency of the evidence. They admit that the evidence bearing upon the questions of notice to each of the appellants and of contributory negligence on the part of the respondent was conflicting, although maintaining that the weight of the testimony was with the appellants. They however, insist that the evidence did not show that the place of the injury was within the limits of public street or highway under the jurisdiction or control of the appellant town, and, furthermore, that there was no conflict in the evidence upon that subject. We think there was ample evidence upon that question for submission to the jury. Witnesses testified to acts on the part of the officers of the town, indicating the exercise of authority over the place in question as a part of a public street. Among the acts mentioned were such as hauling, placing, and leveling dirt at and about this place for use for highway purposes, and the placing of oil upon the same for the said purpose, knowing that it had been, was then being, and would thereafter be used as a public highway. It was thereafter so used, and it was testified by several witnesses that the public had traveled over the place as a public highway for 12 or 15 years. A cross walk was built across this territory and near the hole, and a witness testified that he constructed the walk under the immediate direction of the street commissioner of the town, and received his pay therefor from the town. It was for the jury to determine whether the place was within a public street. A dedication and acceptance may be implied from a general and long-continued use by the public as of right. Elliott on Roads and Streets (2d Ed.)§ 154; 2 Dillon Mun, Corp. (4th Ed.) §§ 638, 642; Raymond v. City of Wichita, 70 Kan. 523, 79 P. 323. Making repairs and improvements and inviting the public to travel may be considered as evidence of the adoption of a highway by a municipality, and it may be thereby estopped to deny that the way is a public one and under its control. 5 Thompson's Commentaries on the Law of Negligence, § 5941. The evidence was by no means all against the theory of dedication and acceptance, as urged by appellants, but there was decided testimony as to facts tending to show that the injury occurred within a public street as tested by the authorities. It was therefore not error to...