Austin v. City of Bellingham

Dunbar, J. This is an action to recover damages for personal injuries alleged to have been inflicted by reason of the negligent maintenance, by the appellant, of a sidewalk in a dangerous condition. The answer denied the existence of the dangerous condition of the sidewalk, or that it was negligently maintained by the appellant, or that it had any knowledge of the existence of the alleged condition of the sidewalk, if such condition existed, and alleged contributory negligence on the part of the respondent. On these issues the 'cause went to trial, the respondent recovering judgment for the sum of $637.50. The allegations of error are the action of the court in denying the appellant’s motion for a non461 suit, and in refusing certain instructions offered by the appellant. While the answer denied the existence of the unsafe condition of the walk, it is conceded by the appellant that the testimony shows that the walk was unsafe and that the respondent was hurt by reason of such unsafe condition, but it is contended that the city had not had notice, actual or constructive, of the unsafe condition of the walk and was not, therefore, guilty of negligence in maintaining the walk in such unsafe condition. An examination of the record on this question shows that there was very direct testimony showing, the unsafe condition of the walk for about two months before the accident, by persons who had noticed it when traveling over it; one witness testifying that he came near getting hurt at the same place and by reason of the same defect in the walk several weeks before the accident. There was ample testimony on this subject to be submitted to the jury. The question of contributory negligence was also properly submitted to the jury. In regard to the alleged error of the court in refusing cei*tain proffered instructions, an examination of the instructions given shows that they covered every question at issue, presenting fairly the theory of the defendant as well as that of the plaintiff, and were as favorable to the defendant as the law would permit. These instructions were not excepted to, and it was not error for the court to refuse to give instructions where the instructions already given had, with just exactness, presented the issues to the jury. Finding no error in any respect the judgment is affirmed. Hadley, C. J., Mount, Rudkin, Fullerton, Crow, and Root, JJ., concur.