Zolawenski v. City of Aberdeen

• Decision Date: 10 February 1913
• Citation: 129 P. 1090,72 Wash. 95
• Parties: ZOLAWENSKI et ux. v. CITY OF ABERDEEN.
• Court: Washington Supreme Court

129 P. 1090

72 Wash. 95

ZOLAWENSKI et ux. v. CITY OF ABERDEEN.

Supreme Court of Washington

February 10, 1913

Department 1. Appeal from Superior Court, Chehalis County; Ben Sheeks Judge.

Action by Thomas Zolawenski and wife against the City of Aberdeen. From a judgment for plaintiffs, defendant appeals. Affirmed.

A. E. Graham, of Aberdeen, for appellant.

Frank Beam, of Aberdeen, for respondents.

GOSE J.

This is an action to recover for personal injuries sustained by the plaintiff wife. The gravamen of the charge is, that a certain bridge in the defendant city formed a part of a public street; that it was used by pedestrians; that there was a hole in the bridge, which had existed for a period of five or six months before the date of the alleged injury; that the plaintiff wife stepped into the hole, fell, and 'that she was thereby bruised about the legs and body, and that the skin was peeled and scraped from her leg; and that by being thrown to the floor of said bridge prolapsus uteri was caused and brought about--that is, her genital and urinary organs were displaced and dislodged.' The answer joined issue upon the alleged defect in the bridge and the injury, and alleged affirmatively that, if the plaintiff wife received the injury, it was caused by her own negligence; and that if the defect in the bridge existed, 'which defendant denies,' she knew of its existence and assumed the risk. There was a verdict and judgment for the plaintiffs for $500. The city prosecutes the appeal.

The court instructed that it was the duty of the city to keep the bridge in a reasonably safe condition for the traveling public; that if it permitted it to become unsafe or dangerous, with knowledge of its condition, or when, in the exercise of reasonable care and diligence, it ought to have known its condition, and that by reason of its unsafe condition the respondent wife, without neglect on her part, was injured as alleged in the complaint, the respondents were entitled to recover reasonable compensation for the injury. Error is assigned to this instruction. The instruction correctly states the law. Sutton v Snohomish, 11 Wash. 24, 39 P. 273, 48 Am. St. Rep. 847; Lorence v. Ellensburgh, 13 Wash. 341, 43 P. 20, 52 Am. St. Rep. 42; Short v. Spokane, 41 Wash. 257, 83 P. 183.

The court instructed: 'In estimating the damage to plaintiffs, if you find for them, you should, in so far as is shown by the evidence take into consideration the physical pain and mental suffering of the plaintiff Magdalena Zolawenski, the temporary and permanent injuries, if any suffered by her; [and if you find plaintiffs are husband and wife you will also take into consideration what loss the husband has or will sustain by reason of the inability of the wife to perform the duties of a wife, in so far as the evidence shows such loss.]' Error is assigned to that portion of the instruction in brackets. The loss of the wife's services is a proper element of damages. Hawkins v. Front Street Cable Ry. Co., 3 Wash. 592 28 P. 1021, Brown v. Porter,

7 Wash. 327, 34 P. 1105; Dow v. Dempsey, 21 Wash. 86, 57 P. 355.

The court instructed that, if the jury should find that the respondents were entitled to recover by reason of the negligence of the appellant, and should be of the 'opinion' that the wife 'was, at the time of the injury, infirm in body, and that such infirmity was aggravated by the injury,' they should 'estimate' from the evidence the amount that should be allowed 'for such aggravation.' The instruction is a correct statement of the law. Jordan v. Seattle, 30 Wash. 298, 70 P. 743; Short v. Spokane, supra. The criticism is that the respondents contended that the wife was sound in body prior to the injury, and that they were not...