[No. 9270.

Department Two.

January 20, 1911.]

#### James Lasityr, *Respondent,*v. The City of Olympia, *Appellant.**1*

Appeal — Review—Harmless Error — Pleadings. In an action for personal injuries tried to the court, error in denying a motion for judgment on the pleadings is error without prejudice, where there was a full trial on the merits and no competent evidence rejected or incompetent evidence received by reason of the state of the pleadings.

Jury- — Qualifications—Taxpayer. Under Rem. & Bah Code, § 94, requiring a juror to be a. taxpayer of the state of Washington, it is not sufficient to disqualify a juror to show that he was not a taxpayer of the county.

Municipal Corporations — Streets—Obstructions—Notice—Contributory Negligence. The contributory negligence of a pedestrian in failing to discover a wire netting about three feet high stretched across a sidewalk, is for the jury, where he fell over the same at night and there was evidence that it could not be seen.

Same — Obstructions—Negligence of Abutting Owner — Liability of City — Notice. A city permitting an abutting owner to obstruct a street in the laying of walks is liable for defects created or negligence as if the city itself had been doing the work, and notice to the city of the defects is not necessary.

Evidence — Competency — Experiments. Upon an issue as to whether a place was well lighted, where evidence of experiments with a similar light was offered, the determination of the preliminary questions as to whether the conditions were substantially similar is largely discretionary; and the quantity of light given out by an arc light is not so unvarying at all times as to make it an abuse of discretion to exclude evidence thereof.

*652Appeal — Review—Harmless Error — Trial—Misconduct oe Counsel. It may not be prejudicial error, on exception to misstatements of the counsel in argument, to refuse to interfere with the course of the argument and further charge the jury, where the court, on objections made, referred to the written instructions given, wherein the duty of the party was clearly defined.

Appeal from a judgment of the superior court for Thurston county, Mitchell, J., entered April 2, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian in falling over an obstruction on a sidewalk.

Affirmed.

*George R. Bigelow (G. C.*Israel, of counsel), for appellant,

1

Reported in 112 Pac. 752.

Rudkin, J.

This was an action to recover damages for personal injuries. On the 8th day of October, 1908, contractors were engaged in laying a cement sidewalk on the south side of West Fourth street in the city of Olympia, between Main street and Columbia street. The walk in question was laid by permission of the city, but under a private contract with the abutting property owner. The walk was completed, or at least unobstructed, from Main street to a point about thirty feet east of Columbia street. At the latter point, three planks, one foot in width and two inches in thickness, were laid from the entrance to a store building, a foot or eighteen inches above the walk, to the curbing at the outer edge of the walk, for the purpose of giving access to and from the building without- walking over the green cement. Immediately west of these planks, fine wire netting, about three feet in height, extended from the store building along the edge of the planks to the outer edge of the walk, and thence along the curbing to and around the corner at Columbia street, to protect the newly constructed walk until it should season or harden. There were no barriers across the walk other than those mentioned, and no lights or other warnings to admonish br protect foot passengers, except the street lights in the vicinity. There was an arc light at the intersection of Columbia and West Fourth streets, about seventy feet distant *653from the place of the accident, another arc light at the intersection of Main and Fourth streets, about 270 feet distant from the place of the accident, and certain other lights on the opposite side of the street in front of business houses. About 8 o’clock on the evening of the above date, the plaintiff left his home to visit a lodge room on Columbia street west of the obstruction in question. In so doing he passed westerly along the sidewalk on the south side of Fourth street and tripped or fell over, the wire netting stretched across the sidewalk in front of the store building above described, causing the injury for which a recovery was here sought. From a judgment in favor of the plaintiff, the city has appealed..

In addition to denials and a plea of contributory negligence, the answer, as a second affirmative defense, alleged that, prior to the accident complained of, the appellant had closed West Fourth street between Main street and Columbia street to public travel, and had caused notice thereof to be posted in public places in the vicinity of the closed portions of the street, and that the respondent disregarded said notices and was a trespasser in the street at the time he met with the accident complained of. This latter defense was not denied by reply, and by reason of that fact the appellant, at the commencement of the trial, moved for judgment on the pleadings. The first error assigned is based on a denial of this motion. The case was twice tried in the court below, and at each trial the court ruled that this defense amounted to nothing more than a denial of the allegation in the complaint to the effect that the respondent had no notice of the dangerous and unsafe condition of the sidewalk. Waiving the question whether this ruling was technically correct when made, the case has been fully tried out on the merits, no competent testimony was rejected and no incompetent testimony received because of the state of the pleadings, and if error was committed in that regard it was error without prejudice to the substantial rights of the parties, and must be disregarded here.

*654The next assignment is based on the denial of a challenge for cause, interposed to one of the jurors on the ground that he was not a taxpayer of the state. Section 94 of Rem. & Bal. Code, provides that:

> “No person shall be competent to serve as a juror in the superior courts of the state unless,he be,

> “(1) An elector and taxpayer of the state of Washington.....”

We are inclined to agree with the respondent that a taxpayer, within the meaning of this statute, is a person owning property in the state, subject to taxation and on which he regularly pays taxes. *State ex rel. Sutton v. Fasse*(Mo. App.), 71 S. W. 745. But conceding such to be the rule, the appellant merely showed that the juror in question was not a taxpayer of Thurston county, and this was not sufficient to disqualify. *State v. Jahns, ante*p. 636, 112 Pac. 747.

The next error assigned is based on the denial of a motion for a nonsuit interposed at the close of the respondent’s testimony, on the ground that the second affirmative defense was. not denied by reply, and on the further ground that the respondent was guilty of contributory negligence. We have already disposed of the first ground of the motion under the first assignment of error, and the second ground is equally without merit. The obstruction in the street which caused the injury in this case was the wire netting, and unless it could' be seen, there was nothing whatever to give notice or warning of its presence. The plank walk leading into the storeroom was no barrier, because a foot passenger could readily step over it, as the respondent did in this case, at the outer edge of the walk where the planks were but a few inches high. If the wire netting could not be seen — and there was ample-testimony tending to show that it could not — it was a trap-for the unwary, and its maintenance was culpable negligence on the part of the city. Whether the respondent had notice of its presence or should have discovered it upon his approach were clearly questions of fact for the jury, under the circum*655stances disclosed by this record. *Sutton v. Snohomish,*11 Wash. 24, *39*Pac. 273, 48 Am. St. 847; *Mischke*v. *Seattle,*26 Wash. 616, 67 Pac. 357.

The next error assigned is based on the claim that the city had neither actual nor constructive notice of the obstruction in the street, and on the refusal of certain requests for instructions bearing upon that question. The court instructed the jury, in effect, that if the city permitted an abutting property owner to obstruct the street it was not relieved from the obligation to see that the street was kept in a reasonably safe condition for public travel, “but that its duty was the same as if such obstruction, if any there be, were being done under the immediate direction and control of the city or its officers.”

> “There are some authorities which hold a municipality responsible for the negligence of one who, acting under its license or permission lawfully granted, creates any defect or obstruction which endangers the safety of persons using the streets. These cases proceed upon the theory that, being charged with the care of its streets, it is the duty of the city to supervise the work permitted to be done and to use suitable precautions to prevent accidents; and notice of the defect or obstruction in the street is not necessary, in such case, to fix the city’s liability.” 28 Cyc. 1355.

Such is the rule adopted in this state. In *Sutton v. Snohomish, supra,*the court said:

> “The fact that a permit was granted was notice to the authorities that the work was in progress, and they were then charged with the duty of seeing it was properly conducted.”

The appellant offered testimony tending to show that the lamp at the intersection of Pourth street and Columbia street on the night preceding the trial of this action was identical with the lamp at the same point on the night of the accident; that the voltage passing through the arc light system on the night of the accident was greater than the voltage on the night preceding the trial; and that on the night preceding *656the trial witnesses could readily read newspapers on the sidewalk at the place of the accident by the light of the lamp in question. The appellant further offered to prove by an electrical expert the quantity of light in candle power cast on the sidewalk at the place of the accident on a dark and cloudy night. These several offers were rejected, and the ruling of the court is assigned as error. Experiments made out of the presence of the court are competent evidence in a proper case, but before they can be admitted it must appear that they were made under substantially the same conditions as existed at the time of the transaction in question, and the trial court is necessarily vested with a large discretion in determining the preliminary questions of fact upon which their admissibility depends. Jones, Evidence (2d ed.), §410; *Chicago City R. Co. v. Brecher,*112 Ill. App. 106; *Chicago*& *Eastern Ill. R. Co. v. Crose,*113 Ill. App. 547; *City of Ord v. Nash,*50 Neb. 335, 69 N. W. 964; *De Loach Mill Mfg. Co.*v. *Tutweiler Coal, Coke & Iron Co.,*2 Ga. App. 493, 58 S. E. 790; *Augusta R. & Elec. Co. v. Arthur,*3 Ga. App. 513, 60 S. E. 213; *Huggard v. Glucose Sugar Refining Co.,*132 Iowa 724, 109 N. W. 475.

In *City of Ord v. Nash, supra,*the court said:

> “Finally, it is argued that the trial court erred in rej ecting as evidence the result of certain experiments made a year or more subsequent to the accident. The witnesses named were, according to the offer in the record, on a cloudy night, with the assistance of a light in an adjoining house, similarly situated to one burning at the time of the accident, able to plainly see the footpath and also the surface of the ground, for a radius of several feet from the point where the injury was received. There is, as all agree, some room for the exercise of discretion by the trial court in the receiving and rejecting of evidence of this character,, and we are unable to say that there has, in this instance, been an abuse of such discretion. We must not be understood as intimating that it would have been reversible error to receive the evidence offered; but the rejecting of evidence tending to prove that the condition of the premises was, at á subsequent time, dis*657cernible by witnesses whose attention was specially directed to the subject, and under circumstances in some respect at least materially different from those surrounding the plaintiff below at the time of the accident, affords no ground of complaint by the city.”

While we are not prepared to say that it would have been error to admit proof of these experiments, we do not think that the quantity of light given out by an arc light, at all times and under all conditions, is so certain and unvarying as to render the ruling of the court erroneous, or manifest an abuse of sound judicial discretion.

Error is assigned in the refusal of the court to give certain instructions on the question of contributory negligence, and also an instruction defining the duty of the city in regard to placing and maintaining signal lights and beacons, but we think these questions were fully covered in the general eharge of the court.

It appears from an objection interposed by the appellant, during the opening argument of counsel for respondent to the jury, that counsel for respondent was contending that the court had charged the jury that it was incumbent on the appellant in all cases to place signal or beacon lights on barriers or obstructions in the street, and the appellant requested the court to correct counsel and instruct the jury to the contrary. The court replied that it had already charged the jury in writing and that the jury would have the instructions before them in their room, but refused to further interfere with the course of the argument. There is nothing in the record to indicate the nature of the argument made by counsel for respondent to which exception was taken, aside from the language of the objection itself, but assuming that it was such as counsel alleged, we do not think that the failure of the court to correct counsel or further instruct the jury was prejudicial error. For, in at least two different places in its charge, the court defined the duty of the appellant in that regard, and its language was not susceptible or open *658to the construction placed upon it by counsel. Thus the court said: “It is the duty of the city in order to guard and protect the public, by day or by night, to properly guard any obstruction that may be placed upon any sidewalk, being constructed or improved by proper and sufficient signals or other general or special lights *or barriers and warnings to' protect travelers from injury.*The law being that the traveler upon a sidewalk has the right to assume that it is safe-for him to pass along such sidewalk or highway in the absence of reasonable *barriers,*lights or *warnings*to the contrary.” And again, “Unless, as already stated he is cautioned by some *sign*or *notice*that would attract the attention of the ordinary person exercising the usual degree of care, caution and prudence.” While we do not think that prejudicial error was committed in the matter complained of, the practice of permitting counsel to misstate or misconstrue the instructions of the court in argument before the jury is not to be-approved or commended.

This disposes of all the assignments of error which merit discussion, and finding no reversible error in the record, the-judgment is affirmed. The respondent has failed to aid the-court in the consideration of this case by brief or otherwise,, and the affirmance will therefore be without cost to the city.

Dunbar, C. J., Chadwick, Crow, and Morris, JJ., concur.