Boggess v. King County, 21340.

• Citation: 274 P. 188,150 Wash. 578
• Decision Date: 31 January 1929
• Docket Number: 21340.
• Parties: BOGGESS v. KING COUNTY et al.
• Court: United States State Supreme Court of Washington

274 P. 188

150 Wash. 578

BOGGESS v. KING COUNTY et al.

No. 21340.

Supreme Court of Washington

January 31, 1929

Department 2.

Appeal from Superior Court, King County; Robert M. Jones, Judge.

Action by Thomas Boggess, a minor, by and through his guardian ad litem, Charles Boggess, against King County and others. From a judgment for plaintiff, defendant King County appeals. Affirmed.

Ewing D. Colvin and Arthur M. Hare, both of Seattle, for appellant.

Stanley J. Padden, G. F. Ward, and John J. Sullivan, all of Seattle for respondent.

HOLCOMB J.

Although the facts in this case are not in dispute, an exposition of the material facts upon which the case was decided by the judge and jury is in order.

King county entered into a written contract with F. G. Bronson and George Theusen, copartners, for labor and materials in the excavation, grading, and construction of a county highway known as Thirty-Fifth Avenue Northeast, just north of the city limits of Seattle, which was at the time a regularly traveled street or public way. A considerable number of people lived in the vicinity of the highway under construction, had regularly used it, and the contractors with the county were required to keep the highway open for use. Part of the construction work consisted of widening the right of way, and it was necessary to remove stumps and to loosen hardpan earth by blasting with dynamite. Dynamite was commonly used in such construction work and had been for a number of years, and such use was contemplated when making the contract. The work was done under the inspection of a deputy county engineer.

Material portions of the contract are referred to by appellant in an abridged form which we shall further abridge. One of them is that the contractor 'will be held responsible for the faithful execution of the work in accordance with the specifications,' and the engineer or his appointee before the final acceptance, or before final payment, should require defective work or materials to be removed and replaced. Another provision is that the successful bidder should satisfy the board of commissioners before the contract was awarded to him that he had, or would promptly provide suitable men and tools and machinery for each of the different kinds of work.

There was a stipulation that the contractor should give his personal attention to the faithful prosecution of the work. There was a provision, regarding the contractor, that when not present on the work, orders should be given by the engineer to a superintendent or overseer, and, if any person employed on the work should appear to be incompetent disorderly, or unfaithful, he should, upon the requisition of the engineer, be at once discharged and not again employed. There is an agreement that: 'The contractor agrees to assume all risks and liabilities for accidents or damage that may accrue to persons or property during the prosecution of the work under these specifications, by reason of the negligence or carelessness of himself, his agents of employees.'

There are certain specific covenants, among other things prescribing that the contractor should provide sufficient safe and proper facilities at all times for the inspection of the work by the board of its authorized representative. Another is that the contractor shall give his personal attention to the work at all times, and be present either in person or by duly authorized representative on the site of the work continually during its progress and shall receive instructions from the engineer in charge as agent of the board. Then follows this provision: 'The contractor shall be liable for all damages and injury which shall be caused or which shall occur to any person or persons or property whatsoever by reason of any negligence of said contractor or any of his servants, employees or sub-contractors, or by reason of any breach or violation of any of the provisions of this agreement or any of its duties or obligations thereunder. * * *'

At about 4:30 p. m., October 13, 1925, one Nelson, employed by the contractors as a tractor man, who had been blasting during the day with dynamite, gathered up what blasting material was left after the day's work was done, rolled it up in a gunny sack, and placed it in a concrete tile at the intersection of the new highway and East Seventy-Third street. The county inspector was not then present, the day's work being over, and most of the contractors' employees had left the work.

Previous to that day, for a week or ten days, several of these concrete tile pipes had been lying on the ground in the same place. They were about 12 inches in diameter, big enough for a child to crawl into, and the boy in question and other children of the neighborhood had been seen crawling through the pipes on several different occasions. The concrete tile in which the gunny sack containing the dynamite and caps was left was near the part of the highway used as a sidewalk by the residents of that neighborhood and opened out toward the sidewalk or path. The inside of the pipe was easily visible to passersby. The path adjacent to which these concrete tiles lay was the only road sidewalk for the children and all the people of the neighborhood to use in going towards the city and to the public school a few blocks to the south. The children of the neighborhood were in the habit of congregating on the corner of the intersection where these pipes were, playing hide and go seek in the pipes and playing along the road. Mr. Meek, a deputy county engineer, who was the only inspector on the works, was well aware of these facts. He was also well aware of the fact that the dynamite had been left lying around on the street and was being used by the employees of the contractor on the day of the accident for blasting hardpan at a point a very few feet from the place of the accident. The inspector had himself, on one occasion during the progress of the work, found a box of dynamite caps left unguarded in the middle of the road. He then reprimanded the foreman in charge of the work for the contractors. He knew that there was no regular place for the storage of the dynamite and caps and paid no attention to where the dynamite was after the hours of work, or whether it was removed from the highway or not at the close of the day, leaving this entirely to the employees of the contractor.

Tommy Boggess, respondent, a boy of seven years, was dismissed from school on the afternoon in question at a little after 3 o'clock and went home. After the men had left the work he took his wagon, and, accompanied by two little girls, younger than he, went from his home to the corner to play in the pipes. He saw the sack in the pipe, where it was plainly visible, crawled into the pipe, pulled the sack out, took out the sticks of powder and fuse and box of caps, and, opening up the box, which contained eight caps, consisting of small copper tubes containing highly explosive material, he proceeded, as he said, 'to make a whistle' out of one of the caps. Being unable to take the material out he went home, got a match, and, not knowing the danger of the cap and being too young to realize the danger, lit the match, applied it to the cap, to 'clean it out' as the said, with the result that it exploded. His hand was terribly multilated, losing a thumb, index and third fingers of the left hand, his left eye was blown out, the right eye impaired, and he received other severe and painful injuries. Through his guardian ad litem he brought suit for $40,000, and upon trial the jury returned the verdict for $20,000 against appellant and by default against Bronson & Theusen. Bronson & Theusen, being insolvent, defaulted. Appellant alone defended.

The theory of the complaint was that the construction work was an attraction to children causing them to play in the vicinity, which was known to the contractors, and that all the defendants, knowing this, were negligent in leaving the dynamite caps unguarded and unattended and with no warning sign in connection therewith and in a place easily and readily accessible, and particularly to respondent as a young child. During the course of the trial the court held that the firm of Bronson & Theusen was an independent contractor, but that the question of the county's liability still remained.

The refused of the court to dismiss the action or to grant judgment n. o. v. in favor of appellant, and in refusing to pass upon that part of the motion for a new trial relating to excessive damages and allowing excessive damages, are the errors upon which appellant relies for reversal.

With the exception of the matter relating to the excessive damages, the only question argued by appellant, as stated by it, is: 'When is a municipal corporation liable for the torts of an independent contractor?'

Although not cited by either party the liability of a county as a subdivision of a state has become generally well established in this state by reason...