Swain v. City of Spokane

• Decision Date: 10 February 1917
• Docket Number: 13528.
• Citation: 162 P. 991,94 Wash. 616
• Court: Washington Supreme Court
• Parties: SWAIN et al. v. CITY OF SPOKANE.

162 P. 991

94 Wash. 616

SWAIN et al. v. CITY OF SPOKANE.

No. 13528.

Supreme Court of Washington

February 10, 1917

Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by W. L. Swain and others against the City of Spokane. Judgment dismissing the complaint, and plaintiffs appeal. Affirmed.

Roche &amp Onstine, of Spokane, for appellants.

H. M Stemphens, Ernest E. Sargeant, and Dale D. Drain, all of Spokane, for respondent.

ELLIS C.J.

Action for personal injuries. The trial court sustained a general demurrer to the complaint. Plaintiffs filed an amended complaint in substance the same as the original. On motion of defendant it was stricken, and an order of dismissal was entered. Plaintiffs appeal.

The material facts alleged were as follows:

'That on or about 2:30 p. m. on the 12th day of October, 1915, Charlotte B. Swain was riding in an Overland automobile, going east along the south side of East Sprague avenue, and that said automobile passed over the west bridge and about two-thirds along the east bridge at the location known as 'Sprague Avenue Fill,' between Arthur and Ivory streets on said East Sprague avenue, and about 65 feet from said Ivory street said car was then and there being operated and driven at the rate of about 7 to 10 miles per hour, when the steering gear of the said car suddenly failed to work, and the car became beyond control and suddenly turned to the right and went over the curbstone and across the sidewalk and struck against a temporary board fence which was built and maintained by the city on the high stone wall which constitutes the south side of the said bridge and roadway. Said car at the time it struck said fence was going at the rate of about 2 miles per hour [in amended complaint alleged about 1 mile per hour], but pushed through and over said fence, and said car went over the edge of said bridge and stone wall and with said plaintiff fell about 35 feet to the ground, greatly and permanently injuring her and smashing and destroying said car.'

This was followed by allegations of carelessness and negligence and want of ordinary care and caution on defendant's part in maintaining a 5-inch instead of a 9 or 10 inch curbstone and in maintaining a board fence on the south side of the bridge or fill instead of a stone, cement, or iron wall or railing. Damages were demanded for personal injuries to Charlotte B. Swain in the sum of $14,000 and for injuries to the automobile in the sum of $1,000.

Respondent moves that the appeal be dismissed for insufficiency of the notice, but since the judgment must be affirmed in any event, we pass at once to a consideration of the case on its merits.

Did the complaint show a violation of duty on the city's part? Appellants assert the affirmative, citing in its support four decisions of this court which we shall briefly consider.

In Sutton v. Snohomish, 11 Wash. 24, 39 P. 273, 48 Am. St. Rep. 847, the plaintiff was injured by falling into an excavation extending into the street. The excavation was left unguarded, and without danger signal or light. The accident occurred about 7 o'clock in the evening in the month of December. The city was held liable, but in the course of its opinion this court marks the limit of the city's duty in the premises as follows:

'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 * * * it is liable to respond in damages to those injured by a neglect to perform such duty.'

In Kirtley v. Spokane County, 20 Wash. 111, 54 P. 936, the question involved was whether the county was liable for injuries sustained by reason of a defective county bridge which fell while plaintiff, with his wagon and team, was crossing it. The court held the county liable, in that it had neglected the positive duty to keep the bridge in repair adequate to ordinary use.

In Einseidler v. Whitman County, 22 Wash. 388, 60 P. 1122, the county was building a new bridge a short distance from an old one which was still in use. In using iron from the old bridge the county removed the guard rails from it. There had been a hole in the old bridge for some time, and on the day of the accident it was filled with blocks and rubbish from the new one. The plaintiff was driving over the old bridge when her team, taking fright at this pile of rubbish, backed off the approach and injured her. The court sustained a verdict for plaintiff, holding that it was for the jury to say whether or not the absence of rails or barriers was a contributing cause with the hole filled with rubbish combining to furnish the proximate cause of the injury.

In Zolawenski v. Aberdeen, 72 Wash. 95, 129 P. 1090, the plaintiff was injured by stepping through a hole in a bridge, which defect had existed for five or six months prior to the accident. Obviously there was a violation of the duty to keep the street reasonably safe for ordinary travel.

In each of these cases it will be noted that the use to which the bridge or street was being put by the person injured was the ordinary, reasonable use for which it was intended, and that the negligence causing the injury, and to which alone the injury was traceable, was failure to keep the street or bridge reasonably safe for such use.

In the case before us it is clear that for all ordinary uses of the street reasonably to be anticipated, it was kept in a safe condition, and that if appellants' car had been equally fit for its intended purpose the accident would not have happened. The defect in the car itself was plainly the proximate cause of the injury. The breaking of the railing was a mere condition. It could not reasonably be anticipated that a car, by reason of its own defects, would be driven over the curb, across the walk for pedestrians, and through the wooden railing at the side of the street.

To hold the municipality liable in such a case would be to make it an insurer against every accident on its streets--in effect an insurer of the tractability of every team and automobile...