Stock v. City of Tacoma

• Decision Date: 19 May 1909
• Parties: STOCK et ux. v. CITY OF TACOMA.
• Court: Washington Supreme Court

101 P. 830

53 Wash. 226

STOCK et ux. v. CITY OF TACOMA.

Supreme Court of Washington

May 19, 1909

Appeal from Superior Court, Pierce County; Geo. T. Reid, Judge.

Action by Henry Stock and wife against the City of Tacoma. Judgment for plaintiffs, and defendant appeals. Affirmed.

T. L Stiles, F. R. Baker, and F. A. Latcham, for appellant.

Govnor Teats, Hugo Metzler, and Leo Teats, for respondents.

CHADWICK J.

The plaintiff Lottie Stock lived on the west side of the alley between C and D streets in the city of Tacoma. The alley was 28 feet wide, with residences on either side for some distance north and south of the place where plaintiff lived. It was graded, but not paved. Along the east side of the alley, opposite plaintiff's home, there was a bulkhead about 88 feet long and 4 or 5 feet high, along which an unguarded walk was maintained or permitted by the city. There was also a walk along the west side of the alley. At about 10 o'clock on the evening of March 30, 1908, the plaintiff left her home to post a letter. She crossed the alley, and followed the walk a short distance, intending to leave the walk and cut across lots by way of a traveled path to D street. She fell from the unguarded walk, over the bulkhead and was injured. The night was so dark that, as plaintiff says, she could not 'see where she was going.' The path she was intending to follow was well known to her, having been used for some time, not only by plaintiff, but by those resident in the immediate neighborhood. Plaintiff, her husband joining, brought this action, and recovered a judgment in the court below, from which the city has appealed.

The first error assigned is the refusal of the court to give the following instruction to the jury: 'You may take into consideration the knowledge of the plaintiff as to the place where she was injured. If she had knowledge of the condition of the alley at the time and place of her injury, and went voluntarily into what she knew to be a dangerous place when it was so dark she could not see where she was going, she was guilty of such contributory negligence as would prevent a recovery of damages, and your verdict must be for the defendant.' The court gave the following instruction: 'You will take into consideration, if you find from the evidence that it is true, that the lady knew of the condition there; that there was an offset there, and no guard rail. That is a matter you have a right to take into consideration in determining whether or not the lady was guilty of contributory negligence in passing along that side of the alleyway in the darkness. As I say, it is not negligence as a matter of law to walk along a highway that is built above the surroundings in the nighttime, even if it is intensely dark.' It is insisted that the instruction given by the court did not cover the exact principle aimed at in the requested instruction, and to which defendant was entitled, that the words 'intensely dark,' as used by the court 'leave room for speculation on the part of the jury as to the intensity of the darkness, and that jurors might well be expected to arrive at other conclusions than they would if instructed as to the true condition that existed at the time of the accident.' We do not see in what way defendant could have been prejudiced by the instruction of the court. As we view this case the degree of darkness was properly a question of fact to be resolved by the jury in making its findings on the question of contributory negligence. Nor do we think respondent should be concluded by her answer that it was so dark she could not see, when taken, as it was taken by the jury, in connection with all the facts and circumstances surrounding the accident. She had used other expressions that would warrant the jury in finding that, while it was not a night 'all white and still,' it was nevertheless not a night so dark that pedestrians should be precluded from following the highways provided by the city. The expression 'so dark I couldn't see anything' is a mild exaggeration indulged by all men and understood by jurors. We think there was no error in the refusal of the court to give the requested instruction.

The real question in this case is raised by the second assignment of error. Appellant contends that this case falls within the principle announced in 5 Thompson on Negligence, § 6273 'One who, with full knowledge of the defective...