278 P. 1071
No. 21064. En Banc.The Supreme Court of Washington.
July 8, 1929.
Appeal from a judgment of the superior court for King county, Findley, J., entered October 11, 1927, upon the verdict of a jury in favor of the plaintiff, in an action for personal injuries. Affirmed as to appellant city of Seattle; reversed as to the other appellant.
Thomas J.L. Kennedy, Arthur Schramm, and A.C. Van Soelen, for appellant City of Seattle.
Roberts, Skeel Holman and Altha Perry Curry, for appellants Pacific Telephone Telegraph Co. et al.
Riddell Brackett and T.N. Fowler, for respondent.
PER CURIAM.
Upon a rehearing En Banc, a majority of the court adheres to the opinion heretofore filed herein, and reported in 150 Wn. 157, 272 P. 723. The judgment is therefore affirmed in part and reversed in part, in accordance with that opinion.
HOLCOMB, J., (dissenting)
Although it is now a useless labor to discuss the matter, I feel bound by my convictions to dissent from the majority as to the liability of Seattle. This I feel the more impelled to do also because I feel that we are inviting, by this decision, much future trouble.
It is true, as was observed in the department’s decision supra, that “the city must exercise reasonable diligence in keeping its streets safe for ordinary travel”. But the city is not an insurer of safety of travel on its streets. It is bound only to exercise reasonable care. The street was well paved and there were no defects or uneven places in it. The city did not deposit the oil and grease on the street. It was more or less natural. A sudden rainfall makes it worse.
We have held that a city is not liable for accidents occasioned by mere slipperiness caused by ice or snow upon the street if the street itself is not defective, or the ice or snow so uneven, rounded up, or at such an incline as to make it unsafe for travel with the exercise of due care. Calder v. Walla Walla, 6 Wn. 377, 33 P. 1054.
The accumulation of an inch or two of mud upon a smooth, even street, rendering the street slippery, was held in O’Reilly v. Syracuse, 49 App. Div. 538, 63 N.Y. Supp. 520, not to create liability on the part of the city, because
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“A municipality is not charged with the duty of keeping its streets and cross-walks in such a condition that a traveler may not slip and fall.”
So, also, the accumulation of leaves on a sidewalk made wet by a rainstorm and causing the sidewalk to become slippery, was held not to make a municipality liable. Osborne v. Tarrytown, 180 App. Div. 224, 167 N.Y. Supp. 681.
Under the modern conditions in every large city such as Seattle, the very density and continuity of traffic itself prevents the frequent removal of such great quantities of wastage from multitudes of gas-driven vehicles so as to keep such streets in safe condition, especially after a sudden rain.
The only foundation I can see for the majority decision is that the city is bound to use such care to keep its streets in a condition as that a vehicle may not skid or a pedestrian slip. Such care is practically making an insurer of the municipality, and is almost impossible.
For these reasons I am obliged to dissent.
BEALS and TOLMAN, JJ., concur.
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