City of Seattle v. Northern Pacific Railway Co.

Citations

• 47 Wash. 552
• 92 P. 411
• 1907 Wash. LEXIS 808

Syllabus

<p>Limitation of Actions—Contract or Tort—Indemnity—Liability Over Under Franchises. Where street railway franchises contained conditions whereby the company agreed to keep certain portions of streets in repair, and to save the city harmless from the payment of damages growing out of or in any way connected with the franchises, an action by the city to recover over the amount of a judgment for damages caused by defects in the streets is not based upon the common law liability making the city and the company joint tort feasors; and such action, therefore, will not be barred by the statute of limitations in two years, hut the six-year or three-year limitation for actions on contract applies.</p> <p>Same—Actual Right of Action—Indemnity—Judgment—-Effect of Appeal. Where a city is indemnified by provisions of a franchise from damages for defects in certain portions of the street, the statute of limitations does not begin to run upon recovery of a judgment for damages against the city, where the cause was appealed, but only from the date of the affirmance of the judgment in the supreme court, or perhaps from the date of its payment by the city.</p> <p>Judgment—Res Judicata—Persons and Matters Concluded— Indemnity. A street railway company, which had agreed to keep a portion of a street in repair and save the city harmless from damages by reason of defects, is not hound by a judgment against the city by reason of actual knowledge of the suit, where it received no notice or opportunity to defend; and in an action to recover over from the company the amount of the judgment it is error to exclude evidence on the part of the defendant that the defect was not in a public street.</p> <p>Same—Duty to Appear and Defend—Pleading—Judgment—Bar —Estoppel—Action Over—Defenses. Where a street railway company, liable over to a city for damages sustained by reason of defects in portions of a street was given notice to appear and defend the action, and refused to do so, but gave notice to