Adkisson v. City of Seattle

• Decision Date: 04 June 1953
• Docket Number: No. 32278,32278
• Citation: 258 P.2d 461,42 Wn.2d 676
• Court: Washington Supreme Court
• Parties: ADKISSON et al. v. CITY OF SEATTLE et al.

Page 676

42 Wn.2d 676

258 P.2d 461

ADKISSON et al. v. CITY OF SEATTLE et al.

No. 32278.

Supreme Court of Washington, Department 2.

June 4, 1953.

Rehearing Denied Aug. 21, 1953.

Kennett, McCutcheon & Soderland, Vernon Gould, Seattle, for appellants.

A. C. Van Soelen, Arthur Schramm, Gordon H. Sweany, Carl P. Zapp, Elliott, Lee & Thomas and McWalters & Copass, Seattle, for respondents.

SCHWELLENBACH, Justice.

This is an appeal from a judgment of dismissal in a wrongful death case, after a verdict of the jury in favor of the defendants.

Roxbury Homes, Inc., applied to the City of Seattle for permission to make improvements on certain streets by constructing sewers and water mains, together with the necessary appurtenances. Permission was so granted on Ordinance No. 79057. The ordinance provided that all work should be performed under direct supervision of the city engineer, and should be done in accordance with the 'Standard Plans and Specifications of the City of Seattle.'

Section 1-34 of the Standard Plans, under the designation, 'General Stipulations Applicable To All Contracts,' provides:

'The contractor shall not obstruct travel unnecessarily and shall cause as little inconvenience as possible to occupants of abutting property and to the general public.'

Section 1-35 provides:

'The contractor shall erect and maintain good and sufficient guards, barricades, signals, and standard 'Street Closed' and 'Detour' signs at all unsafe places on the work, * * *.'

Later, Roxbury Homes, as owner, contracted in writing with Glendale Construction Service, Inc., as contractor, to perform this work.

October 7, 1950, at about 11:00 o'clock a. m., the contractors commenced to dig a trench on West Roxbury Street between Thirty-first Avenue Southwest and Thirty-second Avenue Southwest, and completed the work between 3:30 p. m. and 4:30 p. m. the same day.

West Roxbury Street is an arterial running in an easterly and westerly direction. It is 36 feet wide from curb to curb, consisting of an 18 foot blacktop strip on the north and an 18 foot concrete strip on the south. However, at the location in question, no curbs were in, and the blacktop was approximately 15 feet wide. The concrete strip on the south was originally a county road. The city constructed its portion a few years ago. The line between the concrete and the blacktop constitutes the county and city limits. Although it is considered as a three-lane highway, the general practice is for cars traveling easterly to use the concrete portion of the pavement and those traveling westerly to use the blacktop portion. There is a downgrade on West Roxbury from Twentieth Avenue Southwest westerly to Twenty-eighth Avenue Southwest (at one point the grade is 9.2%) and an upgrade from there to Thirty-first Avenue Southwest, where the grade is 6.7%.

The north side of the trench was about 18 inches from the north edge of the blacktop. It (the trench) was 30 inches wide and 52 inches deep. The dirt was placed on the south side of the trench toward the center of the road, covering the blacktop.

As stated before, the work was completed between 3:30 and 4:30 p. m. That night, shortly after midnight, Adkisson and Wagner left the Trucker's Club in White Center. Soon thereafter, while driving in a westerly direction on West Roxbury, they drove straight into and onto the pile of dirt, scraping a foot of dirt off of the top for a distance of 32 feet. The automobile then 'turned and flipped in mid-air,' traveled a distance of 14 feet and came into contact with and eastbound automobile on the concrete portion of the street. The impact sheared the body of their automobile from the chassis. The chassis then traveled an additional 10 to 12 feet. Both men were instantly killed.

We quote Paragraph III B of the first cause of action of the amended complaint, as to plaintiff Adkisson.

'That the defendants, and each of them, created the above mentioned dangerous situation and maintained the above mentioned public nuisance with full knowledge that the same was an unusual hazard and a condition of great danger to travelers using said public highway and with full knowledge that travelers upon said public highway were likely to be injured or killed thereby. That defendants, and each of them, at said time and place, had the ability to avoid the said dangerous situation and public nuisance and the danger to travelers upon said public highway by piling said dirt off the roadway in the first instance, or, having deposited the dirt as they did, by closing the said highway to traffic and erecting and maintaining standard 'Street Closed' and 'Detour' signs, or by erecting and maintaining good, sufficient and adequate lights, danger signals, warnings, guards and barricades to warn travelers upon said public highway of said dangerous condition and public nuisance. That defendants, and each of them, failed to use any of the means alleged in the next preceding sentence to protect travelers at said time upon said highway. That defendants, and each of them, were then and there callous and indifferent to the fact that injury was likely to result to travelers upon said highway and each of them was then and there guilty of wanton misconduct.'

There was a similar allegation in the second cause of action as to plaintiff McCutcheon. There were also third and fourth causes of action alleging, in the alternative, that the facts alleged constituted negligence. The defendants alleged affirmatively that the acts of the decedents constituted wanton misconduct, or, in the alternative, contributory negligence.

At the close of the plaintiffs' case the trial court dismissed the counts charging wanton misconduct, and the trial then continued on the issue of negligence and contributory negligence. The jury, in answer to special interrogatories, found the defendants negligent, but that such negligence was not a proximate cause of the deaths of Adkisson and Wagner. The jury also found that Adkisson was negligent and that his negligence was the sole proximate cause of his and Wagner's deaths.

Appellants' assignments of error are, that the trial court erred:

1. In sustaining respondents' challenges to the sufficiency of the evidence on wanton misconduct at the close of appellants' case.

2. In Reason No. 5 in the Order Denying Motion for a New Trial in finding that there was not sufficient evidence of wanton misconduct and public nuisance to take those issues to the jury.

3. In refusing to give Plaintiffs' Requested Instructions Nos. 10 and 11.

4. In refusing to give Plaintiffs' Requested Instructions Nos. 26 and 27.

5. In submitting the issue of speed to the jury and giving Instructions Nos. 11 and 14 thereon.

6. In Reason No. 4 in the Order Denying Motion for New Trial in finding that there was sufficient evidence of speed to take that issue to the jury.

7. In refusing to give Plaintiffs' Requested Instruction No. 29.

8. In giving Instruction No. 14 allowing the jury to consider, on the issue of speed, items on which there was not sufficient evidence.

9. In giving Instruction No. 11, that the applicable speed limit was 25 miles per hour.

10. In giving Instructions Nos. 3, 10, 18, and 24, incorrectly stating the law on proximate cause.

11. In refusing to give Plaintiffs' Requested Instruction No. 12.

12. In refusing to withdraw or correct erroneous Instruction No. 19.

13. In Reason No. 6 in the Order Denying Motion for a New Trial in holding that the error in Instruction No. 19 was invited by appellants and that the request to withdraw the same was not timely.

14. In refusing to give Plaintiffs' Requested Instructions Nos. 20, 23, and 24.

15. In refusing to give Plaintiffs' Requested Instruction No. 17.

16. In Reason No. 3 in the Order Denying Motion for a New Trial in holding that the errors made during the trial and in the instructions were rendered immaterial by the jury's answers to the special interrogatories.

17. In denying appellants' Motion for a New Trial and in entering Judgment of Dismissal.

Appellants group together assignments of error Nos. 1, 2, 3 and 4, involving the issues of public nuisance and wanton misconduct.

In an orderly tort action the defendant is liable if his negligence was a proximate cause of the plaintiff's injury, provided there was no negligence on the part of the plaintiff which contributed to his own injury. The early English case of Butterfield v. Forrester, 11 East, 60, involved an accident wherein a pole had been placed across a highway. The plaintiff, while riding violently, ran into the pole and was injured. The jury found for the defendant. In refusing a new trial, Lord Ellenborough, C. J., laid down the rule of law:

'One person being in fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action, an obstruction of the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.'

Wilful or wanton misconduct is not, properly speaking, within the meaning of the term 'negligence.' Negligence and wilfulness imply radically different mental states. Negligence conveys the idea of neglect or inadvertence, as distinguished from premeditation or formed intention. An act into which knowledge of danger and wilfulness enter is not negligence of any degree, but is wilful misconduct. As long as the element of inadvertence remains in conduct, it is not properly regarded as wilful. Wanton misconduct is positive in nature, while mere negligence is materially negative. A person properly chargeable with wanton misconduct is not simply one who is more careless than one who is merely negligent. Wanton misconduct is such as puts the actor in the class with the wilful doer of wrong. 38 Am.Jur. 692, Negligence, § 48.

Since neither wilful nor wanton misconduct arises out of negligence, the contributory negligence of the plaintiff is no defense to an action based on the...