Ferguson v. Yakima, 139 Wash. 216, 246 Pac. 287 (1926).

      [No. 19367. Department One. May 26, 1926.]
DANIEL FERGUSON, Appellant, v. THE CITY OF YAKIMA
                et al. Respondents. 1

[1] MUNICIPAL CORPORATIONS (415, 430) - INJURY TO PEDESTRIAN -
ALLEYS - EXCAVATIONS - CARE REQUIRED OF CITY. It is error to
instruct that it city is not under obligation to keep an alley,
used by pedestrians, in as safe condition for travel as it is
required to keep a street or sidewalk.

[2] SAME (440) - ALLEYS - USE AS HIGHWAY - CARE REQUIRED
OF PEDESTRIAN. In an action for personal injuries due to a
fall in an excavation in an unlighted alley commonly used
by pedestrians, it is error to instruct that persons using
such alley must exercise a higher degree of care than
when using a lighted street.

[3] TRIAL (114) - INSTRUCTIONS - CONSTRUCTION. An instruction
is prejudicial where there is little or no conflict in the
evidence and the questions for the jury are whether the
acts of the parties constituted negligence or contributory
negligence.

Appeal from a judgment of the superior court for
Yakima county, Blake, J., entered May 19, 1923, upon
the verdict of a jury in an action for personal injuries.
Reversed.


1 Reported in 246 Pac. 287.

                    FERGUSON v. YAKIMA.                217
 May 1926          Opinion Per FULLERTON, J.

Lee C. Delle, for appellant.

Dolph Barnett, O. L. Boose, and Grady & Velikanje,
for respondents.

FULLERTON

FULLERTON, J. - The appellant, Daniel Ferguson,
brought this action against the respondents, City of
Yakima and S. A. Campbell, to recover for personal
injuries. There was a trial by jury, resulting in a
verdict for the respondents. The appeal is from the
judgment entered on the verdict.

The appellant and his wife had rooms in the second
story of a house situated on lot 7, in Block 94, of the
city of Yakima. Running north and south through
the block was an alley 20 feet in width. The lot mentioned
was on the east side of the alley, and was the
second lot north from the south side of the block. The
appellant and his wife took their evening meal at a
residence situated on the south lot of the west side of
the block. Their customary way of going from their
rooms to the place where they took their meals was to
leave the house in which their rooms were situate by
the rear door, pass directly west to the alley, thence
south along the alley to a street on the south side of
the block, and thence west on the street. On the evening
of November 17, 1922, the appellant reached his
rooms, coming from his place of work in the business
part of the city of Yakima, at about half past six
o'clock. Some fifteen minutes later, he and his wife left
the rooms to go for their evening meal. They started
over their usual course with the appellant in the lead.
As they reached the alley, the appellant stumbled over
an obstruction placed on the side thereof and fell into
an excavation which had been dug by the respondent
Campbell, during the earlier hours of the day, under
contract with the city for the purpose of laying a water
main.

 218    FERGUSON v. YAKIMA.
                Opinion Per FULLERTON, J.      139 Wash.

The contractor had made an effort to guard the
excavation. He had placed a barrier across the alley
at its intersection with the street on the south, and
another at the end of the excavation, some 150 feet to
the north of the street. On each of these he had placed
red lights, but had placed no intermediate barriers or
lights. The appellant entered the alley about midway
between the barriers. His testimony was to the effect
that he saw neither the barriers nor the lights, and
did not know that the city was laying water mains in
that vicinity. The pathway leading from the house in
which he had rooms into the alley was well defined and
passed into the alley unobstructed.

The evidence shows that the alley was used constantly
by the owners of property abutting thereon,
both as a passageway for vehicles and as a way to pass
on foot, and was sometimes used as a thoroughfare.
Its surface was comparatively smooth; it was kept free
from obstructions; and it was as safe for use as the
ordinary unlighted street. The appellant and his wife
had passed over the course on which they started on
the particular occasion every evening for a considerable
period of time. The appellant was seriously injured.
He suffered a fracture of the left leg of such a
nature as to leave him a permanent cripple.

The errors assigned relate to the refusal of the court
to give to the jury certain requested instructions, and
to a certain instruction given. Of the requested instructions,
little needs be said. In part, they related to
questions over which there was no dispute and which
required no special mention, and, in so far as they were
material, they were sufficiently covered by the
instructions given by the court.

The instruction given, to which exception is taken,
is the following:

                FERGUSON v. YAKIMA.                219
 May 1926          Opinion Per FULLERTON, J.

"A person who travels upon or across an alley in a
city, and especially in the night time and after it is
dark, must exercise a higher and greater degree of
care for his own safety than when traveling upon or
along a street or sidewalk, and I instruct you that it
was the duty of the plaintiff in attempting to travel
along or across the alley to take into consideration the
fact that the alley was not lighted as a street is lighted,
and that the city was not obliged to keep it in the same
condition for travel as it was required to keep a street
or sidewalk, and that it might not be as safe for travel
by him as a street or sidewalk would be, and having
in view all of these circumstances and conditions to
exercise such reasonable care and caution in the use
of the same for travel as a prudent and careful person
would do under like circumstances and conditions, and
if he failed to do so he cannot recover any damages for
any injuries he may have sustained."

[1] This we conceive is a misconception of the law.
The alleys in a city, platted and dedicated to public
use, are as much public highways as a.re the streets
therein. (Rem. Comp. Stat., SS 9292 [P. C. SS 1181];
Carroll v. Centralia Water Co.,
5 Wash. 613, 32 Pac.
609, 33 Pac. 431.) They are under the control of the
public authorities of such city (Rem. Comp. Stat.,
SS 9294) [P. C. SS 12671, and it is as much the duty of
the city to keep them in repair for public use as it is
its duty to keep in repair the highways more commonly
called streets. In all instances, whether the highway
be a street or alley, reasonable care in this regard must
be exercised. What will constitute reasonable care,
must, of course, vary with the circumstances. Reason
able care in the upkeep of an outlying and little used
street might be gross negligence when applied to the
much used streets in the more congested business portion
of the city, but the legal duty is the same in every
instance, the care exercised must be commensurate
with the circumstances. The same rule applies to

 220    FERGUSON v. YAKIMA.
                Opinion Per FULLERTON, J.      139 Wash.

alleys. Little or no care in one instance might be
reasonable care, while in another it would be gross
negligence. It is, therefore, incorrect to say, as the trial
court did say in the instruction given, that a city is not
obliged to keep an alley in the same condition for travel
as it is required to keep a street or a sidewalk. There
is no such general rule. Instances are present in every
city where acts and omissions in the care of an alley
would be negligence, while the same acts and omissions
would be reasonable care with respect to a street
or sidewalk.

[2] Nor is it a general rule that a person who
travels upon or across an alley, whether in the nighttime
or daytime, must exercise a higher and greater
degree of care for his own safety than when traveling
upon or along a street or sidewalk. The traveler's duty
in every instance is to exercise that degree of care the
circumstances and conditions require; that is to say,
he must exercise that degree of care a reasonably prudent
person would exercise under like and similar circumstances.
The court's instructions in this regard
were therefore likewise erroneous.

[3] The further question is whether the instructions
can be said to be prejudicial. It is our opinion
that they were so. There was little or no conflict in
the evidence. The questions for the jury were whether
under the facts shown the respondents were guilty of
negligence, and whether, if the jury found they were
negligent, the appellant was guilty of such negligence
as contributed to his injury. The court's instructions
could easily be misleading on this latter question.

The judgment is reversed and the cause is remanded
for a new trial.

TOLMAN, C. J., HOLCOMB, and MAIN, JJ., concur.