Billings v. City of Snohomish

Fullerton, J. — This is an appeal by the city of Snohomish from a judgment entered against it in an action brought by the respondents, who are husband and wife, to recover for personal injuries received by the wife from a fall on the sidewalk of the appellant city. The first three assignments of error challenge the sufficiency of the evidence to justify the verdict. The injured respondent tripped over a board in the walk, which was raised up immediately in front of her by being stepped upon at the other end by the person with whom she was walking. It is contended that there was no evidence tending to show that the walk at the place of the accident was not reasonably safe for public travel, nor was there any evidence tending to show that the city had notice, either actual or constructive, of the actual condition of the walk. That the walk was so far defective as to render it unsafe for public travel at the place of the accident, it seems to us the evidence leaves no doubt. The walk was originally constructed by laying three stringers parallel with the course of the street, and nailing boards crosswise thereon. At the time of the accident the stringer next to the property line had entirely rotted away, and the one next the street had so far decayed as to allow one of the boards forming the walk to sink below its original level when stepped upon. The effect, was that the boards when stepped upon at.one end would raise at the other, thus tending to trip any one who might' be passing at that time. Manifestly such a condition renders a walk unsafe. Whether the city had knowledge of the defect, or could have learned of it by the exercise of reasonable diligence,' the evidence is not so clear, but we think it sufficient to sustain the finding of the jury that the city did have such knowledge. The. evidence of the respondent, in addition to showing the condition of the stringers as above recited, tended further to show that the walk had been down, something over five years; that the ends of the boards next the property line had rotted away for a foot or more, and for some distance further had [137] decayed on the under side until only a shell remained; that the stringer next the street had decayed on the inner side, leaving a thin shell .to support the boards, and that this shell had been crushed down beneath the board over which the respondent received her injury; that the nails that originally held the board to the stringers had pulled out in part, leaving the walk in a loose condition, so that, it rattled when walked upon; and that it had been in this condition for some months before the accident. This if believed by the jury warranted a finding that the city had constructive notice of the defect. The city officers must exercise reasonable diligence in the care of the city’s walks. They must take notice that constant use will gradually wear out a walk; that nails will pull and supports decay; and that at best the life of a wooden sidewalk is limited to but a few years. It is not enough that they may find that the surface of the walk appears sound. The walk as an entirety must be examined and kept in repair if the city,is to escape the charge of negligence. There was, therefore, no error on the part of the court in refusing to sustain the sev-. eral challenges made to the sufficiency of the evidence. On cross-examination of certain of the city’s witnesses, it developed that a new sidewalk had been constructed at the site of the accident, but whether by the city or the abutting property owner was not shown. At the conclusion of the evidence, the city moved to strike from the evidence and withdraw from the consideration of the jury all reference to the new walk, and asked the court to instruct the jury to disregard it in making up their verdict. This motion not only was not resisted by the respondents’ counsel, but one of them remarked that “if the defendant had not asked that instruc-' tion the nlaintiffs would probably have asked it.” The appellant insists that it is plainly apparent from this remark and conduct of counsel concerning this testimony that they deliberately planned to have the jury hear it, knowing it to be improper, and then have the jury instructed to disregard it, hoping thereby to have all the benefit of such prejudicial [138] testimony without any of the responsibility attached to its introduction. But we find nothing in the record that justifies this charge. The fact was brought into the case incidentally, on cross-examination of a witness by respondents’ counsel, and, so far as we áre able to discover, without any intent on the part of counsel to get improper evidence before the jury. We interpret this remark to mean nothing more than an assent to the motion made by the appellant. The trial judge granted the motion to strike this evidence and afterwards instructed the jury not to consider it as evidence of the defendants- negligence. This cured any error in its admission. This court, it is true, in the case of Carter v. Seattle, 21 Wash. 585, 59 Pac. 500, held that the fact that the municipality had repaired a walk after an accident therein causing an injury, was not evidence that the municipality had been negligent in its care of the walk prior to the accident, and reversed the judgment becáuse such evidence had been admitted. But this was done in a case where the evidence was oifered for the purpose of showing negligence, and where the court had instructed the jury that they might consider the fact in determining whether or not the municipality was negligent. It was not a case where the court attempted to cure the error. It is the almost universal rule that error in the admission of improper evidence is cured where the evidence- is afterwards withdrawn .and the jury are instructed not to consider it. This court has many times so held. Puget Sound Iron Co. v. Worthington, 2 Wash. Ter. 472, 7 Pac. 882, 886; Lytz v. Keevey, 5 Wash. 606, 32 Pac. 534; Zelinsky v. Price, 8 Wash. 256, 36 Pac. 28; Smith v. Buckman, 22 Wash. 299, 61 Pac. 31; Brown v. Pierce County, 28 Wash. 345, 68 Pac. 872; Wilson v. West & Slade Mill Co., 28 Wash. 312, 68 Pac. 716; Hart v. Cascade Timber Co., 39 Wash. 279, 81 Pac. 738. The contention that the verdict is excessive we think has merit. The fall produced no objective .manifestation of physical injury, save a slight abrasion of skin on one of the [139] knees, which healed at once, causing no subsequent trouble. The injured respondent, however, gradually developed a case of neurasthenia, which the medical witnesses stated might ;jj have been induced by the shock received from the fall. But' the record shows that the respondent had been subjected to a capital surgical operation, following which she had engaged for a considerable time in duties calling for much physical exertion; conditions which, as we understand the medical witnesses, were much more liable to cause her present condition than the shock received from the fall on the walk. We think the jury failed to take into consideration these circumstances in rendering the verdict, and that had they done so a much less sum Would'have been returned. The verdict should be reduced to two thousand dollars. The judgment will therefore be reversed^and the cause remanded with instructions to enter a judgment in favor of the respondents for two thousand dollars, in case they file a written consent with the clerk of the lower court- within thirty days after they receive notice that the remittitur has reached that court that they accept that sum in lieu of the judgment rendered; but if they fail to file such consent within the time limited, then to grant a new trial. Neither party will recover costs on this appeal. Hadley, C. J., Rudkin, and Mount, JJ., concur. Dunbar and Crow, JJ., took no part.