The opinion of the court was delivered by
Dunbar, J.This is an action against the city of Seattle for alleged injuries sustained in falling through an unguarded hole in the street. The respondent moves to dismiss the appeal for the reason that the plaintiff sued the respondent city and the Seattle, Lake Shore and Eastern Railway Company. Judgment was rendered against the plaintiff and in favor of both defendants. From this judgment, plaintiff took his appeal by one notice directed to both respondents, *93and gave one appeal bond to both respondents as joint obligees. Since the appeal, the appellant has filed in this court a stipulation signed by his attorneys and the attorneys for the respondent, the Seattle, Lake Shore and Eastern Railway Company, by which appellant stipulates that in this cause the appeal of plaintiff and appellant shall be, and is, dismissed as against the defendant, the Seattle, Lake Shore and Eastern Railway Company.
It is argued by the respondent that inasmuch as plaintiff’s appeal is from the entire judgment and not from a part of it, he cannot now, after time to -appeal has elapsed, change the nature of his appeal by a stipulation with one of the respondents to which this respondent was not a party; that the dismissal as to one respondent renders the appeal bond worthless as to the other respondent, and therefore that the remaining respondent has no security for the costs of the appeal. We do not think there is sufficient merit in this motion on which to base a dismissal. The appellant could have appealed from that portion of the judgment only which was in favor of respondent. We cannot see that the respondent is in any way injured or affected by the dismissal of this appeal, so far as the Lake Shore and Eastern Railway Company is affected, nor do we think that the bond given on appeal would be affected by this dismissal. The motion to dismiss will therefore be denied.
The answer to the complaint of the appellant, so far as it is relevant to the discussion of this case is as follows:
“ That the place where plaintiff is alleged to have been injured is not now, nor has it ever been a public street or highway of the City of Seattle or any part of a public street or highway or a public place at all, *94nor at any time within the control of the City of Seattle.”
Upon the issues thus framed, the case went to trial before a jury. After the testimony was submitted the respondents challenged the sufficiency of the evidence, the case was taken from the jury, and the action dismissed with costs in- favor of the respondents. From this action and judgment of the court this appeal is taken.
The defense to this action is based largely upon the respondent’s construction of the decision of this court in Seattle & Montana Ry. Co. v. State, 7 Wash. 150 (38 Am. St. Rep. 866, 34 Pac. 551). All that was decided in that case, so far as this street was concerned, was that the city had no right to donate the right of way over tidelands to railway companies, thereby depriving the state of its constitutional right to the same. It is not a defense to this action, even if it be conceded that the city had no authority to lay out this street. The right of the party injured to obtain redress does not depend upon the technical rights of a city to maintain a street. If, as a matter of fact, this street was laid out by the city of Seattle, was used by it as a street, and the public were invited to use it as such, it becomes its duty to maintain it in proper repair, and to protect the life and limb of those whom it invites to travel upon it, and the ordinary traveler ismot called upon to examine the technical legality of the proceedings of the city in opening or laying out the street; so that the question in this case is, was there testimony tending to show the user by the public, at the instance or invitation of the city, of the street at the place where this hole was left unguarded, and where the alleged injuries were sustained.
An examination of the testimony introduced, and *95of other testimony which was offered and rejected, convinces us that there was sufficient testimony on that point to go to the jury, and, if believed by the jury, to sustain a verdict. The judgment will therefore be reversed and the cause remanded with instructions to deny the challenge to the sufficiency of the testimony.
Scott and Anders, JJ., concur.
Hoyt, C. J., dissents.
Gordon, J., not sitting.