Blasick v. City of Yakima

• Decision Date: 21 September 1954
• Docket Number: No. 32911,32911
• Citation: 45 Wn.2d 309,274 P.2d 122
• Court: Washington Supreme Court
• Parties: Anna BLASICK and John C. Blasick, husband and wife, Respondents, v. The CITY OF YAKIMA, a municipal corporation, Appellant.

Page 309

45 Wn.2d 309

274 P.2d 122

Anna BLASICK and John C. Blasick, husband and wife, Respondents, v. The CITY OF YAKIMA, a municipal corporation, Appellant.

No. 32911.

Supreme Court of Washington, Department 2.

Sept. 21, 1954.

Rehearing Denied Nov. 8, 1954.

Elwood Hutcheson and Lauren W. Dobbs, Yakima, for appellant.

George C. Twohy and Roberta Kaiser, Yakima, for respondents.

HILL, Justice.

This is a personal injury action involving a fall by Anna Blasick on an alley crosswalk in the city of Yakima. From a judgment on the verdict favorable to Mrs. Blasick the city appeals, urging twenty-six assignments of error.

This appeal poses the usual questions of whether the city was negligent in its maintenance of the crosswalk and whether the pedestrian was guilty of contributory negligence. The most unusual question presented is the propriety of the instruction under which the plaintiff was entitled to recover if she had proved that the city's negligence 'proximately caused or materially contributed to the accident.'

Appellant's description of the area where, according to her testimony, Mrs. Blasick caught her heel and fell is as follows:

'There was a slight depression in the cross-walk of the alley * * * by reason of heavy truck traffic thereon and winter frost conditions, resulting in a spauled area where the surface of the cement had scaled off. * * *

'It is undisputed that for the most part the depression in this spauled area was less than one-half inch below the level of the surrounding area, and that in only two places the depth was three- fourths inch, and this was the maximum depth of the depression in any part of said cross-walk.'

('Spauled' is apparently a variant of 'spalled,' and in this instance means that the smooth surface of the concrete was gone, leaving an irregular depression of various depths and exposing the rocks and stones comprising the aggregate.)

While our examination of the record does not leave us with the certainty expressed by the appellant that the maximum depth of the depression was three-fourths inch, we accept that figure for the purposes of the opinion. To complete the picture, it should be added that there was no alley curb and the alley crosswalk was flush with the sidewalk on either side of the alley (except near the street curb line, and we are not concerned with that portion of the crosswalk). The depressions of three-fourths inch depth were twelve inches by three inches and eight inches by 2 3/4 inches, respectively, and were part of a much larger spauled area where the depression was from one-fourth to one-half inch deep. The spauled area extended across the alley way and had to be walked on by pedestrian traffic.

We said, in Fritsche v. City of Seattle, 1941, 10 Wash.2d 357, 360, 116 P.2d 562, 564:

'A test which is sometimes applied to determine whether a city has performed its duty is whether a reasonably cautious man, having the duty to preserve and repair the sidewalks, would or would not consider a particular defect as one where pedestrians might be injured.'

See, also, Lewis v. City of Spokane, 1923, 124 Wash. 684, 215 P. 36; Kennedy v. City of Everett, 1940, 2 Wash.2d 650, 99 P.2d 614.

This quotation was the basis of an instruction in this case to which no exception was taken.

There might well be cases in which the defects in sidewalks or crosswalks are so inconsequential that reasonable minds could not conclude that failure to repair them would constitute lack of reasonable care. We held that such was the situation in Grass v. City of Seattle, 1918, 100 Wash. 542, 171 P. 533. Appellant urges that the Grass case 'is directly in point and conclusive,' and points out that the depth of the break in the sidewalk involved therein was 1 1/8 inches.

We think the Grass case neither directly in point nor conclusive. There was no depression or hole in the sidewalk, but a straight break across a cement sidewalk, with an elevation of 1 1/8 inches at the inner line of the walk and tapering to nothing at the outer edge. (The opinion does not give the width of the sidewalk, but it appears in the record as eight feet.) The plaintiff-pedestrian had passed over the break in the walk on an average of twice a week for several weeks preceding the accident and did not even know that the defect in the sidewalk existed, which was a factor in the court's conclusion that the defect must have been inconsequential. We are here concerned, based on the city's own exhibit and testimony, with a spauled area constituting a depression or hole in which a heel might be caught, the spauled area being in an alley crosswalk and ranging in depth from one-fourth inch to three-fourths inch and located on one of the busiest streets in the city so far as pedestrian traffic is concerned.

We have distinguished the Grass case (in which, incidentally, this court did not have the benefit of a brief from the plaintiff-respondent) some six times since 1930, on various phases and circumstances, but we did not give the coup de grace to the idea that negligence in sidewalk cases is a matter of micrometer readings until Johnson v. City of Ilwaco, 1951, 38 Wash.2d 408, at page 412, 229 P.2d 878, at page 880, where, speaking of the Grass case, we said:

'We cannot believe from a reading of the opinion that this court intended to adopt a fixed rule that a city could never be held liable if offsets in sidewalks did not exceed 1 1/8 inches';

and that:

'The Grass case must be regarded to a great extent as in a class by itself, and we do not feel that its doctrine should be extended beyond the actual situation then before the court.'

We there indicated that a reasonably cautious man, in applying the test above referred to, would consider factors other than the height of an offset or the depth of a depression or hole. We said, 38 Wash.2d at page 413, 229 P.2d at page 881:

'The exact extent of the offset is not the only factor to be considered. The nature and character of the sidewalk, its location, the amount of travel over it by pedestrians, the extent to which its presence would ordinarily be seen or observed by travelers on the sidewalk, and many other conditions which might exist, all have to be taken into consideration. In those cases where reasonable minds can differ, the questions whether an offset in a sidewalk is of such a character that danger to a pedestrian from its existence may reasonably be foreseen and anticipated by the city, and whether in suffering it to remain the city had kept and maintained such sidewalk in a reasonably safe condition for ordinary use by pedestrians, are for the jury to determine.'

We are satisfied that the evidence in the present case on the various factors to be considered justified the trial court in submitting the case to the jury, and that it did not err in so doing.

Appellant strenuously urges that the injured pedestrian 'was not looking where she was walking,' and that the 'depression was plainly visible, open, obvious and apparent.'

Applicable to this case are our holdings that: (a)...