
    [No. 3671.
    Decided March 7, 1901.]
    W. G. Taylor, Respondent, v. City of Ballard, Appellant.
    
    MUNICIPAL CORPORATIONS-DEFECTIVE STREET-ABSENCE OF RAILING -NEGLIGENCE.
    Where a city maintains a street, elevated from three and one-half to six feet above the adjacent land, without a guard rail to protect teams from shying off the roadway in case of fright, it is liable for negligence when a gentle horse, driven with ordinary care by an experienced driver, becomes frightened at the sight and noise of escaping steam blown off at that point of the street through pipes passing thereunder from an electric power house operated by the city, and backs the buggy to which it is harnessed off the roadway, causing serious injuries to the driver.
    SAME — ’ INSTRUCTIONS REASONABLE AND ORDINARY CARE.
    An instruction which charges a jury that the law imposes on municipalities the duty of ordinary care in maintaining their streets in safe condition for ordinary travel is not erroneous on the ground that the law merely requireá the exercise of reasonable care in such cases, since there is no distinction between ordinary care and reasonable care.
    ACTION FOR PERSONAL INJURIES-PERMANENCY OF INJURY-PLEADING AND PROOF.
    The admission of testimony by physicians that plaintiff in an action for personal injuries would probably never recover his health again was not erroneous, under a complaint alleging that he would be incapacitated from doing his work for the period of two years, when the complaint further alleges that plaintiff was permanently injured and would continue to suffer for the remainder of his natural life great bodily pain and mental anguish. ■
    SAME-ARGUMENT OF COUNSEL.
    In an action to recover damages for personal injuries, a statement by counsel that plaintiff “tells you the truth when he tells you he will not be able to get married, and I submit the proof shows that he is incapacitated from contracting the marriage relation,” would not be prejudicial error, on the ground of improper argument of counsel, when the record shows that the statement was warranted by the testimony of plaintiff.
    Appeal from Superior Court, King County. — Hon. E. D. Bensoh, Judge.
    Affirmed.
    
      Wilmon Tucker, Ivan L. Hyland and John W. Peter, for appellant:
    Upon the point that the court permitted improper argument to the jury, counsel cite Brown v. Swineford, 44 Wis. 282 (28 Am. Rep. 582); St. Louis, I. M. & S. Ry. Co. v. Waren, 48 S. W. 224; Galveston, H. & S. A. Ry. Co. v. Cooper, 8 S. W. 68; Galveston, H. & S. A. R. R. Co. v. Kutac, 11 S. W. 127; Heddles v. Chicago & N. W. Ry. Co., 42 N. W. 237; Dillingham v. Scales, 14 S. W. 566; Andrews v. Chicago, M. & St. P. Ry. Co., 71 N. W. 372; Robertson v. Madison, 29 Atl. 777; Haynes v. Trenton, 18 S. W. 1003; Geist v. Detroit City Ry. Co., 51 N. W. 1112; Tucker v. Henniker, 41 N. H. 317; State 
      
      v. Smith, 75 N. C. 306; Gulf, C. & S. F. Ry. Co. v. Butcher, 18 S. W. 583; Indianapolis Journal Newspaper Co. v. Pugh, 33 N. E. 991; Houston & T. C. Ry. Co. v. O’Hare, 64 Tex. 600.
    The law requires municipalities to exercise only reasonable care in cases of this kind, and does not impose upon them the. use of ordinary care in maintaining and keeping their streets and sidewalks in a safe condition. Fogg v. Nahant, 106 Mass. 278; Rowell v. Lowell, 7 Gray, 100 (66 Am. Dec. 464); Barber v. Roxbury, 11 Allen, 318; Chicago v. McGiven, 78 Ill. 348; Jenks v. Wilbraham, 11 Gray, 142; Kidder v. Dunstable, 7 Gray, 104; Day v. Mt. Pleasant, 30 N. W. 853; Chicago v. Bixby, 84 Ill. 83 (25 Am. Rep. 429); Van Pelt v. Clarksburg, 24 S. E. 878; Yeager v. Bluefield, 40 W. Va. 484 (21 S. E. 752); Hubbard v. Concord, 35 N. H. 52 (69 Am. Dec. 520); Elliott, Roads and Streets, § 448; Angell, Highways (2d ed.), p. 388, note 2.
    As to liability for lack of railings or barriers on side of road, counsel cite Bell v. Wayne, 48 L. R. A. 644 (82 N. W. 215); Doak v. Saginaw Township, 119 Mich. 680 (78 N. W. 883).
    
      P. V. Davis and William A. Gilmore, for respondent:
    It is the duty of municipalities to exercise reasonable care and diligence to see that highways are constructed and maintained in a safe condition for ordinary travel, in the ordinary methods, and to know and foresee that its streets will be constantly traveled by persons driving animals with the characteristics and propensities of the horse; and if, with such knowledge, this accident might have been and ought to have been foreseen, and with reasonable diligence on the part of the officers of the city could have been guarded against and prevented, then the failure of the city to guard against the accident was negligence, and such, negligence was the proximate cause of the injuries to plaintiff. 1 Sutherland, Damages (1883 ed.), pp. 38-47; Yoders v. Amwell Township, 33 Atl. 1017 (51 Am. St. Rep. 750); City Council of Augusta v. Hudson, 21 S. E. 289; Rohrbough v. Barbour County Court, 20 S. E. 565 (45 Am. St. Rep. 921); Simons v. Casco Township, 63 N. W. 500; Gage v. Pontiac, O. & N. R. R. Co., 63 N. W. 318; Village of Carterville v. Cook, 16 Am. St. Rep. 248 (4 L. R. A. 721); Palmer v. Inhabitants of Andover, 2 Cush. 600; Rohde v. Chicago & N. W. Ry. Co., 56 N. W. 872; Yeaw v. Williams, 15 R. I. 20; Ouverson v. Crafton, 65 R. W. 676; Sturgis v. Kountz, 30 Atl. 976 (27 L. R. A. 390); Board of Commissioners of Parke County v. Sappenfield, 33 N. E. 1012; Town of Fowler v. Linguist, 37 N. E. 133; Union St. Ry. Co. v. Stone, 37 Pac. 1012; Joliet v. Shufelt, 32 N. E. 969 (18 L. R. A. 750, 36 Am. St. Rep. 453); Crockett v. Village of Barre, 66 Vt. 269; Byerly v. Anamosa, 44 N. W. 359; Carleton v. Inhabitants of Caribou, 34 Atl. 269; Eads v. Marshall, 29 S. W. 170.
    Upon the question of the latitude allowed in argument to the jury, counsel cite Columbia, etc., R. R. Co. v. Hawthorne, 3 Wash. T. 353; State v. Regan, 8 Wash. 511; Chezum v. Parker, 19 Wash. 645; State v. Hamilton, 55 Mo. 520; Higley v. Gilmer, 3 Mont. 433; McLain v. State, 24 N. W. 720; Bradshaw v. State, 22 N. W. 361; Proctor v. De Camp, 83 Ind. 559; Festner v. Omaha, etc., Ry. Co., 22 N. W. 557; People v. Barnhart, 59 Cal. 402; Morrison v. State, 76 Ind. 335; Anderson v. State, 4 N. E. 63; Shular v. State, 4 N. E. 870 (55 Am. Rep. 211); Scott v. Chicago, etc., Ry. Co., 27 N. W. 276; Thompson, Trials, § § 957, 962-964, 978.
   The opinion, of the court was delivered by

Dunbar, J.

This is an action for damages for personal injuries alleged to have been suffered by the plaintiff while driving on an elevated road in the city of Ballard. The verdict was for the plaintiff in the sum of $10,000, which was reduced by the trial court, on motion for a new trial, to $9,750. From that judgment this appeal is taken.

The accident occurred opposite the city water works and electric light plant, which were constructed by 'the city several years before the accident, and ever since have been, and are now, operated by the city of Ballard, at a place where the road was not guarded on either side. At the pj.ace where the accident occurred the road was elevated about four feet on the side next the water works and light plant, and from three and one-half to six feet on the other side next the bay, — the side where the plaintiff fell off the road. The road is the principal traveled road between Ballard and Fremont. The plaintiff was driving on this road about eight o’clock in the afternoon of April 24, 1899, with a horse hitched to a buggy. The horse is shown to have been a gentle horse and accustomed to being driven by ladies. It appears that the plaintiff had never been over this part of the road before. The testimony showed that he was a reasonably experienced driver, but the night was dark and he did not know that the road was elevated or unguarded at that place. There had been, before the accident,' a stringer four inches by six inches wide nailed to the planking along the outer edge of the road; but this slight protection had been missing for six months prior to the accident, so that the road was absolutely unprotected for a distance of about thirty-five feet. There were two pipes leading from the pump house under the road, and the officers who were running the light plant were in the habit of blowing off steam through 'these pipes from the cylinder cocks of the light plant in the evening about the time the plaintiff was passing. This steam arose from both sides of the road, sometimes blowing across the road, and this wás the condition on the evening of the accident. As plaintiff approached the pump house and electric light plant he stopped his horse to permit a lady bicyclist to pass, when he immediately started forward. It does not appear, however, that the horse became frightened at the bicycle. At this time, also, some small animal ran across the road in front of the horse, and it is contended by the appellant that the testimony does not show whether it was the steam from the pipes, or the animal, which scared 'the horse, but the testimony of the plaintiff is to the effect that the animal ran across the road after the horse was frightened by the steam, and, if his testimony be true, the animal had nothing to do with scaring the horse. But the noise at the pump house and a cloud of vapor which arose from the left side of the road attracted the attention of the horse, and it refused to go ahead. Just at that time another cloud of vapor arose from the other side, and the horse began to back, and backed the buggy over the side of the road and into the drift wood below. The respondent testified' that when he felt the wheels dropping over the embankment he tried to save himself by attempting to jump from the buggy, but did not succeed in getting out. He was thrown violently among the drift wood where he was found an hour or so afterwards, lying in an unconscious condition, about 'three feet from the tide, which was coming in.

Many assignments of error are made, which we will not undertake to follow seriatim. It seems to us that the principal question in this case, viz., whether the city was responsible for the condition of the road which was the cause of the injury, was decided by this court against appellant’s contention in White v. Ballard, 19 Wash. 284 (53 Pac. 159), where the plaintiff recovered for an accident which befell her while driving in a buggy when the horse took fright from several bicycles on an' éight-foot planking, causing it to back off of the planking to the depression below, there being no guard rail where the accident occurred. This court in that case said:

“The question of negligent construction and condition of the street, upon these facts, was certainly one for the jury, and there is substantial evidence to sustain their deduction of such negligence. The bicyclists who occasioned the fright of the horse were not guilty of any negligence or wrong. It was, then, a question for the jury to determine whether the negligent condition of the street was the proximate cause of the injury. We are satisfied with the instructions of the superior court given to the jury upon the question of negligence. It would be of but little value to review the almost infinite number of cases upon this question. Streets must be so constructed 'that the ordinary horse, with the ordinary disposition, allowing for the ordinary incidents of caprice or fright, can be driven with reasonable safety on them.”

This language, if applied to the case under discussion, would work an affirmance of the judgment. The Street or road in this instance, under the testimony of the plaintiff, at least, was not so constructed that the ordinary horse with the ordinary disposition, — and it was shown that the horse which the plaintiff was driving was a gentle horse,— could be driven with reasonable safety. The condition of things shown by the testimony in this case would frighten almost any horse. The noise of the power house, conjoined with the sputtering and hissing of the steam as it escaped from the pip.es, would have a tendency to excite even a very gentle horse.

The appellant relies upon Teater v. Seattle, 10 Wash. 327 (38 Pac. 1006), but that case is no't controlling under the circumstances of this case. There, it is true, the team was killed and the buggy injured in an attempt to make a turn on a bridge forming part of a public drive way, by running off the edge of the bridge, which was constructed without a railing; but the theory upon which that case was decided was that the team had become unmanageable and had. run a long distance, — a mile or such a matter, — before the accident occurred, and that the fact of the team becoming unmanageable was not attributable in any manner to any defect in the street, but was from an independent cause, viz., the unmanageable disposition of the horses, — an entirely different proposition from the one involved in this case.

It is insisted that the court erred in allowing Dr. Sloan, the attending physician, to testify as to what his opinion was as to the probability of the plaintiff ever recovering his health again, for the reason that under the allegations of the complaint it was irrelevant, immaterial, and incompetent, because the complaint alleged that the plaintiff would be incapacitated from doing his work for the period of two years, and that it was, therefore, improper to allow the witness to testify that he was permanently injured. But in addition to the allegations quoted by the appellant, the complaint, in paragraph 8, alleges that plaintiff was permanently injured and that, on account of such injuries, he would continue to suffer for the remainder of his natural life great bodily pain and mental anguish. There seems to us to be nothing inconsistent in these allegations, for the plaintiff might be incapacitated from doing any work for two years, and yet, by reason of a permanent injury, be rendered more or less inefficient for the remainder of his life. But, in any event, the evidence was sufficient to justify a conclusion by the jury that the plaintiff was permanently injured, and under the provisions of Ballinger’s Code, § 6535, all amendments will be considered made that ought to have been made, and the pleading will be treated as amended in accordance with the testimony. Allend v. Spokane Falls & N. Ry. Co., 21 Wash. 324 (58 Pac. 244).

We think there was no error in admitting the testimony of Dr. Adams as to his opinion of the probable recovery of the plaintiff from the accident.

The fourth allegation of error is the refusal of the court to grant defendant’s motion for a nonsuit. The motion was properly denied. There was sufficient testimony as to the causes which frightened the horse to go to the jury. It is insisted by the appellant that the fact that the road had been used daily by hundreds of people for a period of three years without any accident was the strongest evidence that could be introduced that the road was in a reasonably safe condition. In addition to the fact that this was an argument which would have been more properly addressed to the jury, the plaintiff offered to prove that other accidents had occurred at this place, but was not permitted to do so. The allegations as to the proximate cause were sufficient. Allend v. Spokane Falls & N. Ry. Co., supra.

Counsel for appellant strenuously insists that the court erred in allowing counsel for the respondent to indulge in improper statements to the jury, which are criticised as inflammatory, intended to arouse the prejudices of the jury by illegitimate considerations. The only statement which was properly objected to is the statement of the counsel which culminated in the following remark: “And Mr. Taylor tells you the truth when he tells you he will not be able to get married, and I submit the proof shows that be is incapacitated from contracting tbe marriage relation.” And on objection it was stated by tbe court tba't it was ^proper matter for argument to the jury. • Many cases are cited by appellant to sustain bis contention. In tbe very nature of things, tbe remarks passed upon by tbe appellate courts bave all been different, and it is impossible to lay down a rule tbat will govern particular cases. Por tbis reason large discretionary powers are conceded to trial courts, who are surrounded witb tbe at-_ mospbere of tbe trial and are' better able than tbe appellate court to tell what remarks would bave prejudicial effects on tbe minds of tbe jury. Hone of tbe cases cited by tbe appellant seem to us to control tbe case at bar. In Ferguson v. State, 49 Ind. 33, which was tbe trial of a man for murder, during tbe progress of tbe argument for tbe state, counsel commented on tbe frequent occurrence of murder in tbe community, and tbe formation of vigilance committees and mobs, and said tbat tbe same was caused by tbe laxity of tbe administration of tbe laws, stating to tbe jury tbat they should make an example of tbe defendant. Tbis was held to be reversible error, and, we think, very properly so; for, as was said by tbe court:

“It was tantamount to saying to tbe jury, murders bave been committed, vigilance committees formed, and mobs assembled in tbis county, and you may take these matters into consideration in making your verdict; and as you bave got a chance now, you may make an example of defendant.”

Tbis was an appeal to popular prejudice, and a direct attempt to degrade tbe high office of a juror into tbat of a mob, and to inflame tbe minds of tbe jury against one particular individual because crimes witb which he had no connection bad been frequently perpetrated in tbe community.

But this case was afterwards distinguished by the supreme court of Indiana in Gombs v. State, 15 Ind. 215, which was also a trial on an indictment for murder. In that case the plea of insanity had been interposed, and the attorney stated that three or four men had been recently executed at Indianapolis, most of whom set up the plea of insanity; and it was held that was not of sufficient materiality to warrant a verdict, that the conduct of the argument was a matter largely within the discretion of the trial court, and that it was only where there was an abuse of such discretion 'that appellate courts would interfere; and it was there said:

“Courts ought not to reverse causes because counsel, in the heat of argument, sometimes make extravagant statements, or wander a little way outside of the record. If a matter of great materiality is brought into the record as a matter of extended comment, then there would be reason for setting aside the verdict. If every immaterial assertion or statement which creeps into an argument were to be held ground for reversal, courts would be so much occupied in criticising the addresses of advocates as to have little time for anything else. Common fairness requires that courts should ascribe to jurors ordinary intelligence, and not disregard their verdicts because counsel, during the argument, may have made some general statements not supported by evidence.”

This court, in Sears v. Seattle, etc., Street Ry. Co., 6 Wash. 227 (33 Pac. 389, 1081), where the counsel had made a statement which was admittedly in conflict with the facts, or, rather, where there had been no testimony to warrant the statement, although he claimed that the statement was a logical inference from the facts proven, said:

“But counsel must be allowed some latitude in the discussion of their cases before the jury, and if they are not permitted to draw inferences or conclusions from the particular facts in evidence it would be impossible for them to make an argument at all. The mere recital of facts already before the jury is not an argument. There must he some reason offered for the purpose of convincing the mind, some inference drawn from facts established or claimed to exist, in order to constitute an argument. But counsel cannot be compelled by the court to reason logically or to draw correct inferences from given facts; and if they err in these respects it is no ground for a new trial;” citing many cases.

But, in addition to the authorities, which almost universally hold misstatements by counsel will not work a reversal of a judgment unless it clearly appears that the statement was prejudicial, we are satisfied from an investigation of the record that the statement of the counsel was warranted by the testimony of the plaintiff. ■

An objection is made to the first instruction given by the court, and, without setting forth the instruction in extenso, the court, after telling the jury that if they found that the plaintiff had acted as a person of ordinary prudence generally would act under the circumstances, and that no act of his contributed to the injury complained of, said:

“And if you further believe from a preponderance of the evidence that in making and maintaining this road at the place in question, including the steam pipes thereunder, if such there were, defendant, the city of Ballard, failed to exercise such care to know the condition of this road to make and keep said road at said place reasonably and ordinarily safe for ordinary modes of travel, as cities like Ballard, through officers of ordinary care and prudence generally exercise under circumstances entirely similar to all those which surrounded the establishment and maintenance of 'this Bremont-Ballard road at the place in question; and if you further believe from the preponderance of the evidence that such failure on the part of the city of Ballard, if such failure there was, was the proximate cause, that is, the direct and natural cause of plaintiff’s injury, if plaintiff was injured, then you will bring in a verdict for plaintiff,” etc.

The objection to this instruction is that i't endeavors to define the .degree of care to be exercised, by cities like Ballard in effect as being ordinary care, while the law requires municipalities to exercise only reasonable care and does not impose upon them the duty of ordinary care in maintaining and keeping their streets and sidewalks in safe condition. We are of the opinion that the distinction undertaken to be drawn between ordinary care and reasonable care is not recognized by the authorities, but that they are, in substance, convertible terms; and the cases cited by appellant upon this proposition do not sustain it, for in the first case cited, Boulder v. Niles, 9 Colo. 415 (12 Pac. 632), while it was held that it must be shown that the city had not used reasonable diligence in removing certain obstructions from the street, it nowhere appears in the opinion of the court that the term “reasonable diligence” is used as contradistinguished from “ordinary care.” But, as showing that it was used in the same sense, the court concludes its observation on this proposition:

“If, in point of fact, the proper officers of the defendant city did not know of such obstruction when, by ordinary and due diligence and care, they ought to have known of it and removed it, the defendant must be held responsible as in case of actual notice.” '

Dillon on Municipal Corporations (4th ed.), §§ 1006-1019, is also cited by the appellant on this proposition, but we think this authority also shows, if it shows anything at all, that there is no distinction made between these terms. All the cases, of course, hold that the corporation is not required to so construct streets or walks as to secure absolute immunity from danger to people who travel upon them; and this is the question which is generally discussed in the cases cited. The language used by Mr. Dillon in § 1006, above cited, is as follows:

“Its duty, generally stated, is only to use due and proper care to see that its sidewalks are reasonably safe for persons exercising ordinary care and prudence.”

It is true that in Prindle v. Town of Fletcher, 39 Vt. 255, the court said:

“We have never understood that, under our statute, the duty of the town, in the matter of keeping its highways in good and sufficient repair, as affecting its liability to p,ay damages for an injury caused by a defect in such highways, is to be measured by the exercise of ordinary care and diligence;”

basing this announcement largely upon the statute; for, continuing, the court said:

“We think no such test and measure are warranted by the statute, or countenanced by judicial decision. The requirement is, that the town shall keep its highways in good and sufficient repair. This prescribes its duty. If the town is chargeable with any fault in respect to this duty, then the liability attaches.”

But even under the statute the language was used unadvisedly by the court, for, proceeding, it says:

“It was not the design of 'the statute to require impossibilities of the town, and to make it the absolute insurer against all accidents and injuries caused by defects in highways. But it was designed to hold 'the town to insure against accidents and injuries caused by defects existing through any fault of the town.”

It is not difficult to determine 'that the exercise of ordinary care on the part of the city would relieve it from the duties of an absolute insurer against all accidents and injuries caused by defects in highways, and 'that decision is based upon the particular circumstances of that case, viz., that the ground gave way under the horse through some latent defect under the ground, which was not known and was no't discoverable. The court, in its opinion, says that the plaintiff admitted that the authorities of the town could not have learned about it, and that to hold the town liable in such case would establish a principle that would render the town liable as absolute insurer against the consequences of all defects. So that the case, while using the language we have quoted, is not really an authority for appellant’s contention.

But in consonance with the view which we have always entertained, that “reasonable care” and “ordinary care” are synonymous terms, we cite Read v. Morse, 34 Wis. 315, where 'the court, in discussing this proposition, says:

“Yet the degree of care required is the same. In either case reasonable care, or what is the same thing, ordinary care, only, is required. The term ‘reasonable care’ has no fixed, definite signification, but is a relative term. The caution which persons of ordinary prudence would exercise in any given case is ‘reasonable care,’ as the term is used in the law.”

In 16 Am. & Eng. Ene. Law, p. 398, it is said:

“It is difficult to define the term ‘ordinary care;’ it is a relative term, always dependent on relationship and circumstances.”

And in a note on the same page it is said:

“Ordinary care depends on circumstances and is such care as a person of ordinary prudence would have exercised ;”

citing authorities. So that it would be ordinary care if it was the care which was exercised by reasonable people under ordinary circumstances. We think the distinction, if any at all exists, is too vague to warrant a reversal of the cause on that ground.

Other errors are alleged, but they all hinge more or less upon the propositions already discussed. An examination of the testimony in the case and of 'the instructions given and refused convinces us that no error was committed in the trial of the cause.

The judgment will therefore he affirmed.

Reavis, O. J., and Fullerton and Anders, JJ., concur.  