Sweeney v. City of Seattle

• Decision Date: 25 March 1910
• Citation: 57 Wash. 678,107 P. 843
• Parties: SWEENEY v. CITY OF SEATTLE.
• Court: Washington Supreme Court

107 P. 843

57 Wash. 678

SWEENEY v. CITY OF SEATTLE.

Supreme Court of Washington

March 25, 1910

Department 1. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Action by H. Sweeney, doing business as H. Sweeney & Co., against the City of Seattle. From a judgment for defendant, plaintiff appeals. Reversed, and new trial granted.

Charles E. Congleton and Milo A. Root, for appellant.

Scott Calhoun and Bruce C. Shorts, for respondent.

FULLERTON J.

In the summer and fall of 1908 the appellant was engaged in the pumbing, heating, and steamfitting business in the city of Seattle, having his place of business in a certain storeroom and basement room underneath the storeroom which he held under a lease from the owner. The storeroom faced on one of the principal streets of the city and was used by appellant for the purpose of displaying his goods, and for office purposes. The basement opened into an alley at the rear of the building, and was used as a place for storing goods. The alley ran north and south through the block, was 16 feet wide, and opened onto streets at each end furnishing an easy means of approach to the basement door for teams hauling supplies to and from the appellant's place of business. In the fall of 1908 the city of Seattle began the work of grading the street at the north end of the alley and, in the prosecution thereof, caused a fill to be made at the mouth of the alley which shut off access to it for a time from that end. The appellant thereafter brought this action against the city, alleging that by blocking the end of the alley the city had made it impossible for him to use the alley in the pursuit of his business, thereby compelling him to vacate the leased premises, procure a new site, and erect new buildings at a great expense. The city took issue on the allegations of the complaint and a trial was had before a jury, during the progress of which the court gave to the jury the following instruction: 'You are further instructed that, if you find the damages sustained by the defendant were of the same character and kind as those sustained by the owners of other property on the alley and the public generally, you must find for the defendant, and I further instruct you that the fact that the plaintiff used the alley more often than most others makes a difference only in degree and not in the character of the damage.' After the jury retired an exception was taken to the instruction, whereupon the court recalled the jury and reread the instruction making the following comment: 'Now, gentlemen, I am not going to change one single word of that instruction in order even to emphasize it to you, but what that was meant to say was: If you believe that the damages that the plaintiff suffered were the general damages of inconvenience, such as the public in general suffered,...