Devenish v. City of Spokane

The opinion of the court was delivered by

Reavis, J.

Respondent recovered judgment for damages for injury to her person occasioned by a defective sidewalk on Pine street in the city of Spokane. The defect was a broken board. The respondent, in company with two other ladies, was walking over the sidewalk on the 12th of duly, 1897, and one of her companions stepped on a broken plank in such a way as to causé the broken plank to rise and trip her, causing her to fall, from which she was injured. There seems to be no ■ discussion here over the amount of the damages awarded for the injuries. There is substantial testimony to sustain respondent’s complaint. The following instruction by the court is assigned as error:

“ Upon the question of notice to the city, the court instructs you that if you find from the evidence that the sidewalk in question on Pine street was in a dangerous condition at the time of the injury complained of, and had been in that condition anywhere from one to four months before that time, then I instruct you that it is not necessary that actual notice to the city be shown; constructive notice is sufficient. If such condition was in existence for such a length of time that the city authorities, by tbe exercise of ordinary diligence, would have discovered it in time to prevent the accident, the city can not escape liability for want of notice. Under such circumstances, the law imputes notice to the city. Failure to discover and remedy a dangerous defect in a public sidewalk or street, within a reasonable time, is itself negligence.”

The instruction submitted to the jury the question of constructive notice. The court seemed to assume that, if the broken plank had existed in the sidewalk for from one to four months before the injury, it was not necessary to show actual notice to the appellant city of «such defect; that is, that constructive notice was then sufficient. With this meaning attached to the instruction, it was not erroneous.

In Lorence v. Ellensburg, 13 Wash. 341 (43 Pac. 20, 52 Am. St. Rep. 42), it was observed:

“ Counsel insists that there is no proof showing that appellant had notice of the defective condition of the sidewalk. There was evidence tending to show that the walk had remained in the defective condition already described for three or four months preceding the time of the injury. Actual notice was not necessary; constructive notice is sufficient.”

The court there quotes the following from Sutton v. Snohomish, 11 Wash. 24 (39 Pac. 273, 48 Am. St. Rep. 847) :

“ If this dangerous hole . . . was in existence for such a length of time that the city authorities, by the exercise of ordinary vigilance, would have discovered it in time to prevent the accident, the city cannot escape liability for want of notice. Under such circumstances the law imputes notice. Failure to discover and remedy a dangerous defect in a public street within a reasonable time is itself negligence.”

Special findings, at the request of the appellant, were made by the jury as follows:

“ 1. Was there any defect in the sidewalk on Pine street where it is claimed the plaintiff sustained the injuries which caused such injuries? If so, what was the defect ?

Answer. Yes, a broken board.

1. (a) Was such defect obvious?

Answer. Yes.

1. (b) How many sidewalk boards were broken, if any, at the place of accident ?

Answer. One.

1. (c) How many breaks were in the board which tripped plaintiff, if she was tripped, and where were they ?

Answer. One. Between the outside and middle stringer.

2. If you find there was any defect in the sidewalk where plaintiff was injured and which caused such injuries, how long had such defect in the walk existed before the happening of the accident to the plaintiff ?

Answer. One month or more.

4. If you find that the accident to the plaintiff was caused by a broken board in the sidewalk tipping up, state how long prior to the happening of the accident said board was broken.

Answer. One month or more.”

There was testimony tending to support these special findings. Thus, the question of implied notice was properly submitted to the jury. The instructions contain no reversible error. The verdict of the jury is conclusive, and it is not deemed profitable to review other and minor objections made by appellant.

The judgment is affirmed.

Gordon, C. J., and Anders, Fullerton and Dunbar, JJ., eoneur.