Berglund v. Spokane County

• Decision Date: 12 June 1940
• Docket Number: 27881.
• Citation: 103 P.2d 355,4 Wn.2d 309
• Court: Washington Supreme Court
• Parties: BERGLUND et al. v. SPOKANE COUNTY.

103 P.2d 355

4 Wn.2d 309

BERGLUND et al. v. SPOKANE COUNTY.

No. 27881.

Supreme Court of Washington

June 12, 1940

Department 2.

Action by Arvid Berglund and others against Spokane County to recover damages for personal injuries sustained by Ruth Berglund, an infant, when struck by an automobile while she was walking on a county bridge. From a judgment of dismissal plaintiffs appeal.

Reversed.

In action against county for injuries sustained by minor pedestrian who, while walking on county bridge, was struck by an automobile, complaint alleging that bridge was constructed for pedestrian and vehicular traffic and was the only way for inhabitants of the vicinity to gain access from one side of the river to the other, that travel on the bridge was heavy that pedestrians were required to mingle with vehicular traffic, that on prior occasions pedestrians had narrowly escaped being injured while using the bridge and that county was well aware of the conditions existing stated cause of action as against demurrer.

Appeal from Superior Court, Spokane County; Louis Bunge, judge.

E. R Spencer and Williams, Williams & Cooney, all of Spokane, for appellant.

Ralph E. Foley and Harvey Erickson, both of Spokane, for respondent.

STEINERT Justice.

Plaintiffs husband and wife and their minor daughter, brought suit against Spokane County to recover damages resulting from personal injuries sustained by the daughter in consequence of being struck by an automobile while she was walking on a county bridge. A demurrer to the complaint was sustained upon the ground that the complaint did not state facts sufficient to constitute a cause of action. Plaintiffs elected to stand upon their pleading, and the court thereupon entered judgment of dismissal, from which plaintiffs appeal.

The pertinent facts alleged in the complaint, to which we must here look, are as follows:

'4. Many years ago, and about the year 1920, defendant [respondent] for the purpose of providing for pedestrian and vehicular traffic across the Spokane River in Spokane County, near the town of Millwood, constructed what is known as the Argonne Bridge in said county, which was more than three hundred feet long, and at all times all travel has been heavy on said bridge, and at all times since has maintained said bridge for such purposes, and said bridge is and was the only way for the inhabitants in the vicinity thereof on each side, to cross the river and to have access to the portions of the county on the other side of said river. Said bridge was so maintained with a width of about twenty feet, and with no place maintained as a footpath or sidewalk or other method by which pedestrians might cross without using the part also used by vehicular travel, and no way was provided by which pedestrians could cross without encountering dangers from being hit by automobiles traveling over said bridge, or way in which pedestrians might avoid vehicles which threatened them, and defendant was negligent in so maintaining said bridge under the conditions herein alleged.

'5. At all times herein mentioned for a distance of one mile in all directions from said bridge there was a very populous residential district. On the northerly side of said river within said area more than 1500 persons resided and on the southerly side within said area more than 2,000 persons resided, and several schools, churches and public buildings were maintained in said area on the southerly side, and all of said area was embraced in one school district. At all times it has been necessary and required that children should cross said bridge from one side to the other, and there was no way provided whereby such children do so without incurring the dangers and risks which were encountered by Ruth Berglund, as hereinafter alleged, and which resulted in her injury, as alleged herein, nor way by which they might escape from any such threatened dangers.

'6. On or about May 7, 1939, at about the hour of 6 o'clock in the afternoon of said day, said Ruth Berglund was crossing said bridge from the southerly side thereof to the northerly side. At said time the automobile travel over said bridge was very heavy. Said Ruth Berglund was walking on the westerly side of said bridge and came into contract with an automobile going in the same direction, which automobile due to the other traffic was forced to her side of the bridge, and she could not avoid it, but would have had it not been for defendant's negligence as herein alleged. As a result of the facts herein stated, said Ruth Berglund was crushed between said automobile and the side of the bridge, all due to the conditions herein alleged, seriously injuring her as follows: [statement of the injuries].'

'9. Defendant at all times was aware of the dangerous condition of said bridge for pedestrian travel and with the probability that pedestrians would be injured due to vehicular traffic and of the fact that pedestrians had no way of protecting themselves from being injured by vehicles while they should be crossing said bridge, and particularly that such dangers were present where the bridge was being used by infants. On many occasions over a period of several years prior to the accident herein alleged many pedestrians had narrowly escaped being injured, while crossing said bridge, from the dangers of coming into contract with vehicles, and during such period of time many of such pedestrians had been forced to climb the side railing of the bridge in order to escape such threatening dangers. Over several years prior to such accident the said county had been specifically notified of all of the said conditions and all of the said dangers and the difficulty of pedestrians avoiding injury while crossing said bridge due to the fact that there was no passageway reserved for pedestrians and no means provided whereby pedestrians might escape from threatened injuries from vehicle traffic.'

The question here involved is whether or not, under the facts as alleged, the county may be held liable for negligence in failing to provide or maintain a reasonably safe place for use by pedestrians in crossing the bridge.

The rule is well-nigh universal in this country that although a municipality is not an insurer against accident nor a guarantor of the safety of travelers it is nevertheless obligated to exercise ordinary care to keep its public ways in a reasonably safe condition for persons using such ways in a proper manner and exercising due care for their own safety. 7 McQuillin, Municipal Corporations (2d ed.) 27, et seq. § 2909; 43 C.J. 998, § 1785; 13 R.C.L. 309, § 258.

Our decisions are in accord with that rule, which is applied not only to conventional municipalities, but also to quasimunicipalities, such as counties. Sutton v. Snohomish, 11 Wash. 24, 39 P. 273, 48 Am.St. 847; Einseidler v. Whitman County, 22 Wash. 388, 60 P. 1122; Larsen v. Sedro-Woolley, 49 Wash. 134, 94 P. 938; Archibald v. Lincoln County, 50 Wash. 55, 96 P. 831; Neel v. King County, 53 Wash. 490, 102 P. 396; Blankenship v. King County, 68 Wash. 84, 122 P. 616, 40 L.R.A., N.S., 182; Leber v. King County, 69 Wash. 134, 124 P. 397, 42 L.R.A., N.S., 267; Kelly v. Spokane, 83 Wash. 55, 145 P. 57; Swain v. Spokane, 94 Wash. 616, 162 P. 991; L.R.A.1917D, 754; Murray v. Spokane, 117 Wash. 401, 201 P. 745; Lewis v. Spokane, 124 Wash. 684, 215 P. 36; Gabrielsen v. Seattle, 150 Wash. 157, 272 P. 723, 63 A.L.R. 200, Id., 152 Wash. 700, 278 P. 1071, 63 A.L.R. 200; Boggess v. King County, 150 Wash. 578, 274 P. 188; Slattery v. Seattle, 169 Wash. 144, 13 P.2d 464. Fritch v. King County, wash., 102 P.2d 249. While in some of the cases just cited the plaintiff was not permitted to recover, it was only because the facts in the particular cases did not warrant recovery under the rule. The rule itself, however, was clearly recognized in all of the cases.

A bridge across a stream is an integral part of the highway along which it is erected. State v. Vantage Bridge Co., 134 Wash. 568, 236 P. 280; 4 R.C.L. 195.

Hence, the rule previously stated is generally recognized as being similarly applicable to the maintenance of such structures.

'A municipality charged with the duty of maintaining bridges is not bound so to maintain such bridges as to make them absolutely safe; its obligation is merely to exercise ordinary care in keeping the bridges under its control in a safe condition for all usual and ordinary modes of travel and transportation of property over them, with reasonable regard for possible or common dangers that may be expected. Stated in other words, the authority charged with the maintenance and repair of a bridge must use ordinary care to provide against such dangers to the traveling public as may reasonably be anticipated, having due regard to the character of travel, the incidental purposes for which the highway may be lawfully used, and the nature of possible danger at the point in question.' 8 Am.Jur. 936, § 38.

To the same effect, see 9 C.J. 474, § 75.

Our decisions likewise apply the rule to the maintenance of bridges, Zolawenski v. Aberdeen, 72 Wash. 95, 129 P. 1090; Grass v. Seattle, 100 Wash. 542, 171 P. 533; Davison v. Snohomish County, 149 Wash. 109, 270 P. 422, although in some of the cases recovery was denied upon the ground that the facts did not bring the particular case within the requirements of the rule.

In addition to the common law rule just stated which is recognized in this state, there is also a statutory basis for liability on the part of the county. By chapter 187, Laws of 1937, Rem.Rev.Stat. § 6450-1 et seq., entitled 'Washington State Aid Highway Act,' counties are authorized and empowered, among other things, to acquire or erect structures necessary for the administration of...