
    [No. 21064.
    
      En Banc.
    
    July 8, 1929.]
    Louis R. Gabrielsen, Respondent, v. The City of Seattle et al., Appellants.
    
    
      Thomas J. L. Kennedy, Arthur .Schramm, and A. O. Van Soelen, for appellant City of Seattle.
    
      Roberts, Skeel & Holman and Altha Ferry Curry, for appellants Pacific Telephone & Telegraph Co. et al.
    
    
      Riddell & Brackett and T. N. Fowler, for respondent.
    
      
      Reported in 278 Pac. 1071.
    
   Peb Curiam.

Upon a rehearing En Banc, a majority of the court adheres to the opinion heretofore filed herein, and reported in 150 Wash. 157, 272 Pac. 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 beeping 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 mabes it worse.

We have held that a city is not liable for accidents occasioned by mere slip'periness 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 mabe it unsafe for travel with the exercise of due care. Calder v. Walla Walla, 6 Wash. 377, 33 Pac. 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

“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.  