Brabon v. City of Seattle , 29 Wash. 6 ( 1902 )

The opinion of the court was delivered hy

Fullerton, J.

Brabon was a member of the paid fire department of the city of Seattle. He was killed while on the way to a fire by the overturning of a hose cart on which he was riding. This action was- brought to- recover for his death. On the day of the accident he rode in his accustomed and proper place on the rear platform of the cart, which was being driven by its regular driver, whose duty it, was to regulate the speed and select the route of the cart while on the road from the fire station to the place of the fire. While proceeding on his way at the time"in question, the driver turned into- an ungraded street, known as “East St. John street,” where he ran onto- a root extending from a stump, on the side of the- traveled way partially across the track, which caused the cart to- overturn and fall upon Brabon, inflicting the injuries from which he died. From the judgment, in favor of the respondents the city appeals.

The appellant first contends, that because the evidence fails to, show that the city had graded thei street, or had otherwise attempted to, improve or prepare it for public travel, it is not liable for injuries caused by defects therein, claiming’ that as to the city it was a street only in name, and that any onei using it did so without invitation from the city, either express or implied, and consequently at his peril. There are cases, which maintain the rule that the mere fact of establishing a highway by judicial action does not of itself so open it to, the public as to render the municipality liable for injuries that may occur to travelers thereon because of defects therein; and this perhaps is the general rulé. There are cases also which hold that a dedication by a land owner of a public street, unaccepted by the municipality in which it is situated either by ordinance, resolution, or other appropriate formal action, or by user short of the. period necessary to establish a highway by prescription, will not have that effect. But neither of these rules apply to the facts, of the case before us. Here the street was dedicated in ISIS. The, city has so far recognized it, as a public street of the city as to change its name by ordinance, and to lay a sewer along it. It has graded the streets running at right angles to, it on each end, and suffered and permitted it to' be used without objection by vehicles of all kinds for a period long enough to establish a highway by prescription under the statutes of this state. It may be that the demands upon it did not require it to be graded or cleared for its full width, but the city, after having recognized it as a public street and permitted its use thereafter, was bound to maintain a reasonably safe way along it, sufficient to accommodate the travel upon it, and is liable, under the rule in this state, to, one, who, without fault, is injured thereon because of defects therein, while using it for a lawful purpose and in the manner it was intended to be used. Rowe v. Ballard, 19 Wash. 1 (52 Pac. 321); Taake v. Seattle, 18 Wash. 178 (51 Pac. 362); Sutton v. Snohomish, 11 Wash. 24 (39 Pac. 273, 48 Am. St. Rep. 847); Cowie v. Seattle, 22 Wash. 659 (62 Pac. 121); Einseidler v. Whitman County, 22 Wash. 388 (60 Pac. 1122.)

It is nexti said that the court erred in refusing to> instruct the jury that, if the- accident occurred because of the negligence of the driver of the hose cart, the respondents could not recover. But we fail to find any evidence in the record upon which to< predicate such an instruction. It was not shown that Brabon had any power or authority to direct c-ither the speed at which the cart should be driven or the course to he taken by the driver, or that he had any control over the driver whatsoever. Ror was it shown that the negligence of the driver ivas the sole or the proximate cause of the injury. If there were negligence on the-part of the driver1 at all, it consisted in his failure to discover the root in time to avoid it, or, perhaps, his mistaken belief that the cart would safely pass over it at the speed at which he was going. In either event it was the combined negligence of both the driver and the city which caused the injury, and neither can plead the negligence of the other to' avoid liability. It is not a case of negligence of a fellow servant. Brabon and the driver were not fellow servants, and the driver’s negligence cannot be imputed to Brabon. To entitle the city to the instruction asked, there must have been evidence before the jury that the driver’s negligence was the sole cause of the accident; and, as we say, there Avas no such evidence. Elyton Land Co. v. Mingea, 89 Ala. 521 (7 South. 666); Houston City St. Ry. Co. v. Richart, 27 S. W. 918; Kansas City v. McDonald, 60 Kan. 481 (57 Pac. 123, 45 L. R. A. 429); Bennett v. New Jersey R. R. & T. Co., 36 N. J. Law, 225 (13 Am. Rep. 435).

Tba objections to tbe iustonictious are met by the cases of Howe v. West Seattle Land & Imp. Co., 21 Wash. 594 (59 Pac. 495); Bussanicz v. Myers, 22 Wash. 369 (60 Pac. 1117); and Abrams v. Seattle & M. Ry. Co., 27 Wash. 507 (68 Pac. 78).

The judgment- is affirmed.

Keavis, O. L, and Hadley, Anders, Dunbar and Mount, JJ., concur.