Drake v. City of Seattle

Citations

• 30 Wash. 81
• 70 P. 231
• 1902 Wash. LEXIS 654

Syllabus

<p>MUNICIPAL CORPORATIONS-EXCAVATIONS IN STREETS-DUTY TO GUARD-NOTICE OF CONTRACTOR’S NEGLIGENCE</p> <p>The duty to properly guard excavations in streets, although the work is carried on by an independent contractor, rests primarily upon the city; hence actual or constructive notice to the city that the contractor had failed to protect the public against an excavation by placing guards or signal lights there is not necessary in order to render the city liable for the non-performance of that duty.</p> <p>SAME-CONTRIBUTORY NEGLIGENCE.</p> <p>The question of plaintiff’s contributory negligence in falling into a street excavation was one for the jury, where the evidence showed that plaintiff knew holes were being dug in the street in front of her house, but did not know their exact location, nor that there was a hole at the place where she fell, since there was nothing to indicate its presence, either in the way of barriers, lights or loose dirt; that the excavation was at the intersection of the street on which she lived and a cross street along which a car line ran; that in attempting to board a car at the street intersection she fell into a hole between the tracks, not having heard the warnings called out to her until she was falling and without having noticed there was an opening there.</p> <p>SAME-VERDICT CONTRARY TO INSTRUCTIONS-HARMLESS ERROR.</p> <p>The fact that the jury’s verdict was contrary to an instruction charging them that the city was not negligent, if it used reasonable care to discover the dangerous condition of the street and the accident intervened before the lapse of a reasonable time between the discovery and the remedy of the defect, was not error, inasmuch as the city was chargeable with the primary duty of guarding excavations in its streets, and the neglect of the persons to whom that duty had been intrusted was the neglect of the city.</p>