Sutton v. City of Snohomish

• Decision Date: 31 January 1895
• Citation: 39 P. 273,11 Wash. 24
• Parties: SUTTON v. CITY OF SNOHOMISH.
• Court: Washington Supreme Court

39 P. 273

11 Wash. 24

SUTTON v. CITY OF SNOHOMISH.

Supreme Court of Washington

January 31, 1895

Appeal from superior court, Snohomish county; John C. Denney, Judge.

Action by Eugene S. Sutton against the city of Snohomish to recover for personal injuries. From an order denying a motion for a nonsuit, and judgment for plaintiff, defendant appeals. Affirmed.

L. H. Coon, City Atty., and Coleman & Hart, for appellant.

Andrews & Morris, for respondent.

ANDERS J.

Avenue B is a street running north and south in the city of Snohomish (a municipal corporation of the third class), and is intersected at right angles by First street, which is the principal thoroughfare of the city. About 7 o'clock in the evening of December 10, 1892, the respondent, while walking north on the sidewalk on the east side of the avenue fell into an excavation, whereby he sustained serious personal injuries. This excavation was on the west side of a brick building fronting on First street and extending north on the east line of Avenue B, and extended about 3 feet into the sidewalk for a distance of 35 feet north and south. The respondent, claiming that the city negligently left this excavation open and unguarded, and without light or signal to indicate danger, brought this action to recover damages for the injuries so sustained. The city answered, and admitted that it was a municipal corporation, and that Avenue B was one of its streets. It denied all other allegations of the complaint, and as an affirmative defense averred that at the place where the excavation was made Wells & Davis contractors, were erecting a two-story brick building for J Otten, the owner of the abutting property, and if any excavation was made in said street it was made by said contractors, their servants or employés, without the consent or knowledge of the city; and that the defendant had no notice that any such excavation was made, or left unguarded; and that, if the plaintiff sustained any injury, it was caused solely by his own negligence, and not by the negligence of the defendant. A verdict for $13,625 was returned by the jury against the city, and a judgment was subsequently entered in accordance therewith. At the close of the plaintiff's evidence the defendant moved for a nonsuit on the ground that the plaintiff had not made a sufficient case for the jury. The motion was denied, and the defendant excepted, and this ruling of the court is assigned as error. It is urged on behalf of the appellant that the motion for nonsuit should have been granted for the following reasons: "(1) Nonliability of the defendant; (2) failure of the plaintiff to present his claim and demand payment thereof before beginning this action; (3) it does not appear that the defendant had notice of the defect in the highway complained of; (4) that it appears from plaintiff's case that he was guilty of contributory negligence."

As to the liability of the city of Snohomish for injuries sustained by individuals by reason of defective streets, it may not be improper here to observe that the question is not properly raised by the motion for a nonsuit. It is a pure question of law, and such questions are properly raised by demurrer. But, inasmuch as no objection is made to its consideration upon the motion, we will consider it as presented and discussed in the able briefs of counsel. It is urged by counsel for the appellant that the damages claimed in this action are for neglect of governmental duty, and for that reason, as well as for the further reason that there is no express statute in this state making cities of the third class liable for damages resulting from failure to keep their streets in repair, this action cannot be maintained. It must be conceded that there is no legislative enactment declaring these cities liable for such negligence as is alleged in the complaint in this action, and it may also be conceded that the appellant city cannot legally be made to respond in damages for negligence in the discharge of purely governmental duties. But it does not necessarily follow from these propositions that the city is exempt from liability in the present case. In the first place, we are of the opinion that the laying out, repairing, and controlling of streets by a chartered municipal corporation does not call forth the exercise of strictly governmental functions. In the performance of such duties, however imposed, the municipality acts primarily for the benefit of the inhabitants of the particular locality. In preserving the peace, caring for the poor, preventing the destruction of property by fire, and preserving the public health it assumes duties which are said to be in their nature solely governmental (Jones, Neg. Mun. Corp. c. 4), and for the nonexercise or negligent exercise of which the corporation is not generally liable to individual citizens. But the duty to keep streets in repair is a municipal or ministerial duty, for a breach of which an action will lie in favor of a party injured thereby. City of Denver v. Dunsmore, 7 Colo. 328, 3 P. 705. In the second place, we think that where, as here, a city has exclusive control and management of its streets, with power to raise money for their construction and repair, a duty (when not expressly imposed by charter) arises to the public, from the character of the powers granted, to keep its streets in a reasonably safe condition for use in the ordinary modes of travel, and that it is liable to respond in damages to those injured by a neglect to perform such duty. There is undoubtedly a want of harmony among the decisions of the courts upon this question, but we believe the decided weight of authority, as well as sound reason, is in favor of the view above expressed. City of Denver v. Dunsmore, supra; Shear. & R. Neg. (4th Ed.) § 289; 2 Dill. Mun. Corp. (4th Ed.) § 1017; Elliott, Roads & S. p. 446; Jones, Neg. Mun. Corp. 88 et seq.; Cooley, Torts (2d Ed.) 746; Weightman v. City of Washington, 1 Black, 39; Barnes v. District of Columbia, 91 U.S. 540; District of Columbia v. Woodbury, 136 U.S. 450, 10 S.Ct. 990. But this question is not a new one in this state. It was before the territorial supreme court in Hutchinson v. City of Olympia, 2 Wash. T. 314, 5 P. 606, and was there decided adversely to the contention of the appellant; and was referred to approvingly in Morgan v. Morley, 1 Wash. St. 464, 25 P. 333.

The statute provides (Gen. St. § 638) that: "All demands against such city shall be presented to and audited by the city council in accordance with such regulations as they may by ordinance prescribe; and upon the allowance of any such demand the mayor shall draw a warrant upon the treasurer for the same, which warrant shall be countersigned by the clerk, and shall specify for what purpose the same is drawn, and out of what fund it is to be paid." A presentation of the claim sued upon to the city council was not alleged or proved in this instance, but we think it was not such a demand as was contemplated by the legislature in enacting the section of the statute above quoted. The demands there spoken of are those arising out of the ordinary transactions of the city, and which may be examined and compared with the vouchers, and "audited," and not those resulting from violations of municipal duties. This construction has virtually been given to statutes even more mandatory in terms than ours by the highest courts of several of the states. See Kelley v. Madison, 43 Wis. 638; Bradley v. City of Eau Claire, 56 Wis. 168, 14 N.W. 10; Jung v. City of Stevens Point, 74 Wis. 547, 43 N.W. 513; Lay v. City of Adrian, 75 Mich. 438, 42 N.W. 959; Warren v. Davis, 43 Ohio St. 447, 3 N.E. 301; Sheridan v. Salem, 14 Or. 328, 12 P. 925; Pomfrey v. Village of Saratoga Springs, 104 N.Y. 459, 11 N.E. 43.

We readily agree with the learned counsel for the appellant in the assertion that the city cannot be held guilty of negligence if it had no notice of the existence of the excavation in question. But we are unable to say that no notice had been shown by the plaintiff when he closed his case. It is not necessary, in such cases, that actual notice be shown. Constructive notice is sufficient. If this dangerous hole, which, according to the statement in appellant's brief, was but 11 feet and 5 inches from the north line of First street, was in existence for such a length of time that the city authorities, by the exercise...