The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1896-01-25
THE CITY NOT LIABLE.
Cannot Be Sued for Accidents
on Railroad Avenue,
IT Is HELD NOT TO BE AsTREET.
Railroad Companies Must Keep It In
Good Condition-Decision by Judge
Osborn in Take Case.

uSClSi01 EeSfeT-
day OF Judge Richard Osborn In the supe-
rsor court. after listening 10 long and
searching argument by the attorneys in
the case Of Frederick Take VS.. the city,
AS result OF the ruling Take goes out
Of court and finds himself without recourse
unless he decides to appeal 10 the supreme
court. or 10 begin an entirely new action
against the receivers OF the Seattle, Lake
Shore & Eastern railroad.
The history OF the case, which has been
pending for three days, is substantially
this. Some time in June. 1894. Take fell
through dangerous opening In Railroad
avenue. near Spring street, and received
serious personal injuries. The hole was
in the right-of-way Of the Seattle, Lake
Shore q Eastern. and he sued the city and
the railroad company jointly for s.. 20 DAM
ages. The Plaintiff was represented by
Brady & Gay, A. G.. Mcbride and A. E.
Isham. while Assistant Corporal ton Coun-
sci Frank l.. Steele appeared for the city
and Gen. Z. NJ. Carr for the railroad COM
pany. At the close OF the case for Take
Mr. Steele made a motion for non-suit, but
was successfully resisted by Mr.. Isham.
Argument by the Attorneys
In due course a motion 10 discharge the
jury and for Judgment of dismissal was
made. both by the railroad company and
by the city. Gen. Carr argued that the
be granted for the reason that the control
OF the road had passed from the company
into the bonds OF the United States courts
prior TO the accident. and at the time was
being operated by the receivers, ard wnen
the motion as 10 the company prevailed
Mr.. Steele was left alone TO fight the battle
for the city. He proved himself equal to
the emergency, and for two hours adj
dressed the court, going over every phase
OF the situation. and contending forcibly
that the city could not be held. He said
in part:
Railroad tvenus is not a pub
Ito street. 1t was never laid
out by the city as such, nor has
it been repaired or opened by the city to
public travel. All the improvements and
WEARING made on the avenue have been
constructed by the several railroad com
panies which occupy IL for their personal
use and advantage. and the city sustains
toward IL no more responsible position than
1t does toward the wharves built at the end
OF upland streets extending to the harbor
area"
The contention for Take was made by
Mr.. GaH and Mr.. Mcbride. They endeav-
ored by concise argument TO fortify them
selves in the position that the user OF the
avenue had been sufficient. in connection
with the attempted establishment by or
dinance. to hold 1t as public street FOR
the purposes of their case. The general
principle of law cited was that strip OF
territory commonly used by the public as a
highway imposed upon the city the ooli-
cation TO keep 1t reasonably safe for travel
That proposition was admitted by the
city, and the argument was met by the con-
tention that the facts did not bring Rail-
road avenue within the rule.
Company Not Properly Joined.
In making his ruling the court showed
evident reluctance that the circumstances
OF the case were such as TO compel rim 10
decide against the liability OF the defend
ants. He intimated strongly that in view
OF numerous accidents, narrow escapes
and even loss of life because of the unsafe
places on Railroad avenue, it was about
time people should find out whether the
avenue was a street or rot. and where the
responsibility lay for its unprotected con-
dition.
The motion to discharge the jury and for
judgment of dismissal on the part of the
railroad company turned on a technicality.
1t was shown that so far as the railroad
company was concerned 1t had not been
running the road for more than year
previous TO the time of the accident, and
that the corporation. having been placed
in the hands of a receiver, could not be
held. no matter what liability the property
of the company might incur. The exist
pended for a time and 1t could not be made
a party to the action.
why the City Is Not Liable.
Passing 10 the liability OF the city, Judge
Osborn said:
an this case IL is an undisputed fact
that the city has never improved Railroad
avenue nor repaired IL In any way. nor
that as a municipal corporation II has
ever done anything with the street save
10 pass ordinances and grant franchises.
The question as 10 whether the avenue by
those acts became a street has been passed
on by the supreme court and the decision
reached was that the city had not the
power TO lay out and make a street where
Railroad avenue is, and consequently that
no legal street is there. While II IL the
law that although city may not proceed
regularly In laying out n street, or may
not have the power 70 appropriate and inn
prove any part OF the land for that pur-
pose. yet If II does take such course and
makes a street, then 81 is a street as be-
tween the city and all other parties not
connected with its legal status. But the
authorities are that the city must do
something. must assume control over the
street, before 81 can be held liable for &C
cidents thereon.
Another point is that the duty to repair
the street does not devolve upon the city
until II has taken possession. has built or
constructed and improved IT,: In other
words, the city IS not liable for the darn
ages any one may suffer on account Of the
condition of the street simply because IL IS
a street. II the city never improved II
other than by laying Il out then the city
does not become responsible for It's con-
diti6n.
The Avenue Never Was "a street.
Railroad avenue lies along and over the
waters OF Elliot bay. ard al the time OF
the passage Of the ordinance nothing was
there but water and In fsw places the
burned remains OF piles. That the rail-
road company was permitted 20 come
along the space and construct the rail-
road which II did-the city never dele
gated TO the railroad company the power
or authority. or required OF II 20 make
street for travel other than for the uses
of the railroad corpaly-and that IL vas
allowed to run over the avenue at its dis
erection. with the exception o. certain pro-
visions protecting the rights OF wharf
owners. left Railroad avenue praetl-
caIly in the same condition as q private
wharf would be. as the city had given up
Railroad avenue entirely and exclusively
TO the railroad companies: and Railroad
avenue. having never been legally made a
street, nor become such BY use and con-
troll Of the city. is not a public street.
Hence, the city cannot BE held liable
for Injuries resulting IN consequences OF
the defective condition o. Railroad ave-
nue."
nv tha ruling that Railroad avenue IS