Durham v. City of Spokane ( 1902 )

The opinion of the court was delivered bv

Fullerton, J.

This is an action for personal injuries received by the respondent from a fall upon the sidewalk of the appellant city. The trial resulted in a judgment in favor of the respondents. The first error assigned is upon the refusal of the trial court to sustain a general demurrer to the complaint. That part of the complaint material to the question presented alleged, in substance : That a certain street of the appellant city, known as “Riverside Avenue,” was at the time of the injuries complained of, and is now, one of the principal business, and most frequently traveled, streets of the city, and was at all the times in the complaint mentioned under the direct supervision and control of the appellant.

“That on or about the 15th day of August, 1899, and at thé time plaintiff received the injuries hereinafter mentioned and a long time prior thereto, the defendant carelessly and negligently, and for want of ordinary care, permitted and allowed the sidewalk on the north side of Riverside avenue between Lincoln and Monroe streets, and more particularly that portion of said sidewalk near and adjoining Monroe street, and directly in front of the building known as the ‘Dodd Block/ to- become old, rotten, unsafe, and out. of repair, and dangerous for the public to travel thereon, and the superintendent of streets of said city liad actual notice thereof -more than twenty-four hours next before the injury herein complained of, and, having actual notice thereof, and well knowing for a period of more than four months the said sidewalk to be old, rotten, unsafe, and out of repair, and dangerous for the plaintiff and public in general to travel thereon, and was old, rotten, unsafe, and out of repair, and dangerous in this, to-wit: That the said sidewalk was them and there composed of wooden boards which were worn by long previous use in said sidewalk, and were rotten with age and from long exposure to the weather and elements so long that the said boards composing said sidewalks were then and. there in such a weak condition that they and the sidewalk would not sustain the weight of an ordinary adult person, and, by reason of said condition of said boards and said sidewalk, there were then and there in said sidewalk several holes, the number of which is to these plaintiffs unknown.

“That on the loth day of August, 1899, while the said Hattie C. Durham was then and there walking along and upon said sidewalk on the north side of Riverside avenue between Lincoln and Monroe streets, in the said city of Spokane, and directly in front of the building known as the ‘Dodd Block/ being about Ho. 926 on said Riverside avenue, and about sixty-five yards from the east side of the south end of the Monroe street bridge in said city of Spokane, and while exercising ordinary care, and not knowing the dangerous and unsafe condition of said sidewalk, her foot, by reason of said condition of said sidewalk, went through a hole in said sidewalk and became fastened therein, and by reason thereof she fell through and upon said sidewalk, and then and there sustained thereby the following injuries, to-wit:” — etc.

The particular objection made to the complaint is that it fails to allege that the hole into' which the respondent’s foot went and became fastened — the direct cause of the injury — was one of the holes theretofore existing in the walk of which the city had knowledge. But, as we understand the complaint, the gravamen of the allegation is that the general bad and unsafe condition of the sidewalk at the place where the injury occurred, and not any particular hole therein, was the cause of the injury; that this condition existed for a long period of time, to the actual knowledge, not only of the city officers generally, but of the particular officer whose duty it was to superintend the streets and sidewalks and protect the public against dangers arising from defects therein. This being true, the particular hole the respondent stepped into is not material. If the sidewalk at the place where the injury occurred was old, rotten, full .of holes, and out of repair, and dangerous generally, and had been so for a period of four months prior thereto, and such condition was the cause of the injury, it can make no difference as to- the city’s liability therefor whether the injured person stepped into an existing hole’, or a hole made by her at the time of the injury, or, if she did step into an existing hole, whether that particular hole existed for a long or for a short period of time; provided, of course, she was not guilty of contributory negligence. The complaint, in describing the particular cause of the injury, must, it is true, state the facts with reasonable certainty; bu.t it would have been enough to have stated them in language much more general than is used in the present complaint. The case of Huntington v. Burke, 12 Ind. App. 133 (39 N. E. 170), relied upon by the appellant, seems to us not to be in point. True, stress is laid upon the fact that neither the size, character, nor extent of the hole, or broken place into which the plaintiff stepped were in any manner indicated; but the decision is rested upon the proposition that there were no allegations that the hole and broken place in the sidewalk, the defect which caused the accident, ivas the defect ivhich the city had knowingly suffered to exist in the sideAvalk. To quote from the opinion:

“If the defect, referred to as having existed for six months, Avas shoAvn to be the ‘hole and broken place’ in the sidewalk, then appellant, under the circumstances alleged, would, perhaps, be liable for the injuries sustained by her, if without fault on her part; but, as Ave have seen, it is not alleged that the ‘hole and broken place’ Avhich caused her injuries were the defects which AA'ere suffered knoAvingly by appellant to remain out of repair for six months prior to the accident. For aught that appears in the complaint, the ‘hole and broken place’ had not been in the sideAvalk for any length of time prior to the accident, and the defects which were suffered knowingly by the appellant to remain out of repair prior to the accident Avere defects Avhich had nothing to do Avith the injuries sustained by appellee. It is settled in this state that a complaint charging the defendant Avith an act injurious to the plaintiff, Avith a general allegation of negligence in the performance of the act, is sufficient to Avithstand a domurrer to the complaint for want of sufficient facts. In this case the complaint charges that the ‘hole and broken place’ Avas the cause of the appellee’s injuries, but there is no allegation of negligence on the part of appellant in suffering the ‘hole and broken place to be in the sidewalk.”

The complaint before us is more specific. It not only describes the condition of the walk at the place of the accident, and avers that the city had knowledge thereof, but avers that it was by reason of such condition that the injury occurred;’ clearly distinguishing the cases, even were we inclined to follow the cited case as authority.

In the complaint the injuries caused the, plaintiff by the accident were described as follows:

“Dislocation and fracture of her right ankle; fracture of one bone, to-wit: the tibia in her right leg; dislocation of her right hip'.; shock and strain to and through her pelvis, spine, and back, which said shock and strain to and through her said pelvis, spine, and back was great and severe, in so much that they produced delirium, extreme physical pain, nervous paroxysms, continual physical suffering, cramps, partial paralysis of the bowels and legs, general prostration; anfl the said Hattie C. Durham, who then and there, at the time she fell through and upon said sidewalk as aforesaid, was and had been for about five months in a state, of pregnancy and with child, by reason of her having so fallen and sustained the injuries aforesaid suffered and sustained an abortion and miscarriage of the said child, which said child was, about two days after the said Hattie O. Durham had fallen as aforesaid, bom prematurely and dead; that by reason of the said Hattie O. Durham having so fallen and sustained the injuries aforesaid her bladder was so injured and affected and its function so impaired that she was, is, and will be forever unable and incapable of retaining her urine, but, as rapidly as urine is secreted therein it, by reason of said injury to her said bladder, involuntarily and without her control leaks and is discharged from her; that the said injuries so sustained by her to her hip, spine, nervous system, bowels and lower extremities, and to her bladder were and are of great injury and damage to her physical and mental health and well-being, and are, each and all of them, incurable and permanent.”

In the claim made to the city council, which the charter of the city requires shall he presented within thirty days after the accident, the injuries received were described in this language:

“Dislocation and fracture of the right ankle; fracture of one bone in her right leg, dislocation of her hip, strain and shock through the pelvis and hack,' strain and shock to the spine, causing the said Hattie C. Durham, who was then and there, and had been for the period of six months in the state of pregnancy, to have a miscarriage, all of which was then and there, and is now, to her great injury, and damage to her .physical and mental health.”

On the trial of the cause the court permitted the respondent Mrs. Durham, and her physicians, over the objection of the appellant, to testify concerning certain urinal and bowel troubles from which she was suffering, and to testify that the same were caused by injuries received at the time of the accident. The appellant, while conceding that, the complaint is sufficiently broad to permit the introduction of such testimony, contends that it was error to admit it, because the claim hied with the city council makes no mention of such troubles, and the city charter requires that the claim shall set forth the nature and extent of the injuries received. It is argued that as the purpose of the charter requirement is to enable the city authorities to investigate the claim, and to afford them an opportunity to settle it without subjecting the city to the expense of an action, it is necessary that a claimant set forth all of the facts upon which his claim is based; else the city authorities may be misled thereby, to the prejudice of the city. It is manifestly just, and seems to be the. rule of the cases, that all of the known effects of the injury, upon which the claimant, intends to rely for recovery, should be stated in the clainij where the statute or charter requires the nature and extent of the injuries received to be stated. This does not mean, however, that the claim will be construed with technical strictness, or that a general statement of the injuries received will preclude proofs at the trial of the natural and proximate results of the injuries described. It would seem, therefore-, that, were there no other reason for admitting proof of the urinary and bowel troubles, it would be admissible on the ground that they were the'natural and proximate results of the physical injuries described. But the case presents another ground upon which the admissibility of this evidence may rest. It was shown by the testimony of the physician who wjiited upon the injured respondent that these troubles did not develop until after the time had expired within which a claim therefor could be presented to the city council. Manifestly, unless it is to- be held that the city can by this form of enactment prevent a recovery against itself for personal injuries, it cannot, by requiring claims for injuries to be presented within a given time, prevent a recovery for troubles arising from such injuries which do not develop within the given time. But it is not the rule that a city may say whether or not it shall be held for personal injuries caused by its neglect of duty. Charter provisions of the character in question, whether enacted by the legislature, or, as in the present case, by the city itself, are to be upheld only so far as they are reasonable and tend to the due administration of justice. When such provisions so far depart from reasonableness as to

In the seventh paragraph of the complaint it was alleged that the respondents presented their duly verified claim for damages to the city council of the city of Spokane on .a date named, setting out the same in haec verba. The answer admitted that the claim there described was filed with the city clerk,' and denied each and every other allegation contained in the paragraph. The court ruled that the answer was an admission of the presentation of the claim to the city council, and that no further proofs thereof were required. This is assigned as error. The plaintiff contends that the answer admitted nothing more than that a claim in the words of the copy was presented, and that the answer amounted to a denial that the claim was presented in time, or was duly verified, or that the signatures thereto were genuine. We do not think so. The admission that the claim described was presented, admitted everything that went to the description of the claim. The allegation that the claim was presented by the respondents, that it was duly verified by them, that it was presented on a date named, that it was in certain words and figures, Avere all descriptive of the claim, and stood admitted by the answer. To the objection that it Avas presented to the city clerk, and not to the city council, it is a sufficient ansAver to say that it Avas presented to the officer through whom all claims against the city must be presented, and Avas, in law, a sufficient compliance Avith the city charter.

The'jury returned a verdict for plaintiffs in the sum of $17,000. The trial court gave the respondents the option of either submitting to a neAv trial, or remitting $5,000 of the verdict. The respondents elected to remit, and judgment was entered for $12,000. It is claimed that the amount is still excessive and disproportionate to the injury sustained. Competent physicians testified that Mrs. Durham received the injuries set out in the complaint which we have above outlined, and that their effect Avas to permanently destroy her general health and leave her a cripple for life. Against this there was no evidence whatever. In fact the appellant rested its case upon the testimony of the respondents. Under the circumstances, Ave think that, if the verdict was excessive in the first instance, it was sufficiently reduced by the trial judge.

While there are other assignments of error in the record, most of them are but other forms of the questions already discussed. Such of them as are not so have been examined and found not to be of sufficient merit as to warrant separate consideration.

The judgment is affirmed.

Reavis, C. L, and Hadley, White, Anders, Dunbar and Mount, JJ ., concur.