Lemman v. City of Spokane

Citations

• 38 Wash. 98
• 80 P. 280
• 1905 Wash. LEXIS 1125

Syllabus

<p>Municipal Corporations — Streets —■ Negligence — Defective Sidewalk—Plaintiff’s Knowledge—Contributory Negligence—■ Nonsuit. In an action for personal injuries sustained by reason of tripping on a loose board in a sidewalk, a nonsuit, on the ground that plaintiff knew of the defective condition of the walk and was guilty of contributory negligence, is properly refused where it appears that, although she knew the walk was somewhat defective, she did not know it was out of repair at the place where the accident occurred, and that she was walking in the usual manner at an ordinary pace and paying ordinary attention to the walk.</p> <p>Same—Dispute as to Knowledge of Plaintiff—Assumption of Safety—Instructions. Where it is a disputed question as to whether the plaintiff knew of the unsafe condition of a sidewalk, it is not error to give instructions upon plaintiff’s theory of the case that a pedestrian has a right to assume that a sidewalk is in a reasonably safe condition for travel, where instructions were also given on defendant’s theory as to the care required of the plaintiff, and that the jury should take into consideration her knowledge of the condition of the walk.</p> <p>Same—Degree of Care Required of City—Instructions—Curing Error. In an action for personal injuries sustained through a defect in a sidewalk, it is not reversible error that in one place In its charge the court used the term “safe condition” instead of “reasonably safe condition” in referring to the duty of the city, where later on in a special instruction the court gave the correct rule as to the city’s degree of care.</p> <p>Appeal—Record—Review. Requested instructions not brought up as part of the record, cannot he considered on appeal.</p>