Blankenship v. King County

• Decision Date: 08 April 1912
• Citation: 68 Wash. 84,122 P. 616
• Parties: BLANKENSHIP v. KING COUNTY.
• Court: Washington Supreme Court

122 P. 616

68 Wash. 84

BLANKENSHIP v. KING COUNTY.

Supreme Court of Washington

April 8, 1912

Department 2. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Action by H. O. Blankenship against King County. From a judgment for defendant, plaintiff appeals. Reversed for new trial.

George F. Hannan and Richard G. Hutchinson, both of Seattle, for appellant.

John F Murphy and Robert H. Evans, both of Seattle, for respondent.

FULLERTON J.

The appellant sought in this action to recover for personal injuries received by him from an accident happening while he was driving a team upon a county road in King county. The roadbed at the place of the accident was some 24 feet in width, and had been macadamized for a width of 16 feet along its center. The road, so the appellant testified, was traveled throughout its entire width, although the heavy traffic passed over the macadamized portion of the way. At the place of the accident, and for some distance on each side thereof, the road had been graded out from the side of a hill, and lay in the shape of a curve; the point of the curve extending towards the summit of the hill. On the other side it broke off abruptly, owing to the fact that the roadbed was built up from the natural slope of the hill. Some five months or more before the accident one Barret, for purposes of his own in no way connected with the affairs of the county, hauled and placed on the roadbed between the macadamized portion of the way and the hill two blocks of granite two feet by two feet by four feet in size, laying them diagonally to the course of the road, so that their ends reached within a foot and a half or two feet of the macadamized part of the road. On the evening of September 16 1909, the appellant drove along the highway towards his home with a team of well-broken horses and a light wagon, traveling in a trot at a speed of perhaps six miles an hour. As he reached the point in the road where the granite blocks were placed, he collided with them. The collision broke the right front wheel of his wagon to pieces, and caused the right hind wheel to loosen from the axle and to roll off. The team thereupon started to run away, dragging the appellant, and before they were stopped he received the injuries for which he sues in this action.

In his direct as well as his cross examination the appellant admitted that he was familiar with the road over which he was traveling; that he had traveled it many times in the nighttime as well as the daytime; that he knew the exact location thereon of the granite blocks; and that his team was under control at the time of the accident. But he also testified, in excuse of his act of driving upon the blocks, that the macadamized part of the road was covered over with more or less dust and dirt, especially on its edges, and that one driving over it could not always tell by the mere sound the team and wagon made whether or not they were entirely on this part of the way; that, as he approached the blocks, he was keeping well to the right of the way so as to avoid collision with possible approaching teams and automobiles; that but a short time before the collision his team had become frightened and increased their speed somewhat, and that it took more than his usual attention to keep them under control; that the night was dark and rainy, and that the blocks could not be readily seen; and that he 'was cold and wet' and 'bent on getting home.' At the trial, before the appellant had concluded his testimony, the court took the case from the jury and entered a judgment of dismissal, basing his action on the grounds that no negligence was shown on the part of the county, and that the defendant was guilty of negligence in driving upon the granite blocks after he had knowledge of their location in the highway. This appeal is from the judgment of dismissal.

This court has heretofore held, and it is the general rule, that counties are not obligated to open highways...