Nipges v. Mountain View Township

Morris, J. Respondent brought this action against the appellant township to recover damages claimed to have been sustained by him because of the failure to keep a township highway in a reasonably safe condition for public travel. On a trial before the court without a jury, respondent was awarded damages in the sum of $300, and the township appeals. [269] Two questions are presented. The first is that a township is not liable for a defect in one of its highways, in the absence of any special statute imposing such a liability. This question has lately been passed upon adversely to appellant’s contention in Orrock v. South Moran Township, 97 Wash. 144, 165 Pac. 1096, where, after a review of the statutes of this state affecting such liability, it was held that township organizations are municipal corporations existing and recognized under and by virtue of the constitution and laws of this state, and as such are liable for their torts. The second question urges contributory negligence on the part of respondent, first, because, at the time of the accident resulting in his injury, he was using an unsafe and insecure seat, from which he was thrown when his wagon slipped into the hole in the highway. This presents only a question of fact, upon which the finding is adverse to appellant’s contention, and we find no evidence in the record to justify us in holding that the lower court was wrong in so finding. Second, it is urged that respondent’s knowledge of the defect complained of imputes contributory negligence to him as a matter of law. Ever since McQuillan v. Seattle, 10 Wash. 464, 38 Pac. 1119, 45 Am. St. 799, we have held that knowledge of a defect in a highway and the use of it notwithstanding such knowledge are not of themselves negligence in law. But it is a question of fact whether, knowing the dangerous condition, the injured person used care and caution commensurate with the necessities of the case. Finding no error, the judgment is affirmed. ' Ellis, C. J., Mount, Holcomb, and Chadwick, JJ., concur.