Bradshaw v. City of Seattle

• Citation: 264 P.2d 265,43 Wn.2d 766
• Decision Date: 30 November 1953
• Docket Number: No. 32400,32400
• Parties: , 42 A.L.R.2d 800 BRADSHAW et al. v. CITY OF SEATTLE et al.
• Court: United States State Supreme Court of Washington

Page 766

43 Wn.2d 766

264 P.2d 265, 42 A.L.R.2d 800

BRADSHAW et al. v. CITY OF SEATTLE et al.

No. 32400.

Supreme Court of Washington, Department 2.

Nov. 30, 1953.

A. C. Van Soelen, Arthur Schramm, Dean H. Eastman, Roscoe Krier, Seattle, for appellants.

Kennett, McCutcheon & Soderland, Gould & Ackley, Seattle, for respondents.

DONWORTH, Justice.

This case involves four causes of action arising from a collision between an automobile and a Northern Pacific locomotive. The driver of the car, George Bradshaw, and Thomas Matthews, as guardian ad litem of Daniel Lynn Fisher, a minor, seek recovery for property damage and personal injuries. Melvin De Vore, as administrator of the estate of his wife, Fae De Vore, seeks recovery for her wrongful death, on behalf of himself and on behalf of her minor son, Daniel Lynn Fisher. Mrs. De Vore and her son were riding in the automobile as guests of Mr. Bradshaw when the collision occurred.

Defendants are the city of Seattle and the Northern Pacific Railroad Company. The jury returned a verdict for the plaintiffs against both defendants. Judgment was entered thereon and both defendants have appealed.

For the sake of convenience, plaintiffs will be referred to respectively as Mr. Bradshaw, Fae De Vore and Danny Fisher. Defendants will be referred to as 'the city' and 'the railroad.'

West Marginal Way is a nonarterial, two-lane street within the city limits of Seattle. It is somewhat winding, but runs roughly north and south. The paved portion is approximately nineteen feet in width and is bordered on both sides by gravel shoulders. To the west of the street is an occasional manufacturing plant. Paralleling the street on the east is a main track of the railroad. Within a distance of 2.4 miles, beginning at Michigan street and extending north, there are four sets of imbedded rails crossing the paved portion of this street. Prior to the accident (which happened on May 16, 1950), three of these sets of rails had been torn up on each side of the pavement, leaving the exposed ends visible, thus making these crossings obviously unusable.

The accident occurred at a spur crossing near West Adams street. This is the third set of imbedded rails encountered by a driver traveling north from Michigan street. This spur track leaves the main track on the east, curves and crosses the street diagonally in a southwesterly direction. There was no warning sign or device at this location.

At the time of the accident Mr. Bradshaw was driving north on West Marginal Way, having (as above noted) Danny Fisher and his mother as guests. The visibility was good although it had just started to rain. Mr. Bradshaw was aware of the four sets of imbedded rails as he had driven this route frequently on the way to work.

The remaining facts are in dispute. Plaintiffs' evidence, which the jury was entitled to believe, was based upon the testimony of Mr. Bradshaw and two disinterested witnesses. It tended to establish these additional facts:

Mr. Bradshaw was driving just within the twenty-five mile per hour speed limit. He was aware of the existence of this crossing but had never seen a train use it and, because it looked the same as the other three sets of rails, thought it was unusable. Just south of the crossing on the east side of the pavement the gravel shoulder was between eight and ten feet wide. Separating the shoulder from the parallel main track was a growth of grass, weeds, brush and small trees ranging in height from a few inches to several feet. This tended to hide the rails and obstruct the driver's view of any train crossing the street on the spur track after switching from the main track on the east. On the west shoulder the rails were hidden in the gravel, since the crossing was used only at infrequent intervals. One witness who lived nearby said he had only seen it used six or seven times in six years. The crossing, therefore, gave the same appearance to a driver as the three unusable crossings.

Mr. Bradshaw first saw the locomotive as it came through an opening in the brush onto the east shoulder. He was then about forty or fifty from the crossing. The locomotive, a diesel switch engine traveling without cars, was not ringing a bell or blowing a whistle. It was traveling backward somewhat less than ten miles an hour. No flagman was present warning drivers of approaching cars at the crossing. Mr. Bradshaw applied his brakes as soon as he saw the locomotive. An expert witness testified that, allowing time for a driver to get his foot on the brake, in his opinion it was impossible to stop a car traveling twenty-five miles an hour within fifty feet under the conditions prevailing at that time.

The evidence showed that at the time of the impact both vehicles had almost come to a stop. The right front quarter of Mr. Bradshaw's car struck the rear of the 120 ton locomotive. The collision was severe enough to cause serious injury to Mr. Bradshaw and badly damage his car. Danny Fisher was less seriously injured but his mother, Fae De Vore, was killed.

Appellants' evidence tended to show that Mr. Bradshaw was exceeding the speed limit, that his view of the crossing was not obstructed and that adequate warning was given by a continuous ringing of the bell and the presence of a flagman walking in front of the locomotive as it approached the pavement. (The flagman died prior to the trial and consequently his testimony was not available.) All five remaining members of the locomotive crew testified that respondents' two disinterested eyewitnesses to the accident were not present at the scene at all.

This conflicting testimony bearing upon the questions of negligence or lack of negligence on the part of the respective parties presented an issue of fact for the jury to decide.

Respondents' complaint alleged that the city was negligent (1) in allowing brush, trees and vegetation to grow alongside the street which obstructed an approaching driver's view of the crossing thus creating an inherently dangerous situation and (2) in failing to place and maintain near the spur track traffic signs or other devices to warn motorists. It was further alleged that the railroad was negligent, in addition to being jointly responsible for the lack of such traffic signs, in failing: (a) to have a flagman in plain view a reasonable time before the locomotive entered the highway and to warn of the approach of the locomotive, (b) to keep a proper lookout for travelers, (c) to apply the brakes seasonably, and (d) in proceeding onto the roadway when reasonable care would have indicated that a collision was imminent.

The city makes twelve assignments of error and the railroad claims seventeen errors. Some of them are identical but most of them raise questions applicable to only one of the appellants. For reasons hereinafter stated, we do not find it necessary to discuss all twenty-nine assignments but will notice only those which are determinative of these two appeals.

We now consider the city's first assignment of error which is based on the trial court's denial of the city's motion for judgment notwithstanding the verdict. Two grounds were included in the motion:

'(a) No liability on city as matter of law.

'(b) Plaintiff Bradshaw was guilty of contributory negligence as matter of law.'

In support of the first ground the city argues that a municipality is not liable for negligence of its officers and employees when engaged in the performance of governmental or public duties but is liable for their negligence only when performing duties in connection with the exercise by the municipality of its corporate or private powers. Hagerman v. City of Seattle, 189 Wash. 694, 66 P.2d 1152, 110 A.L.R. 1110, and cases cited; Hutton v. Martin, 41 Wash.2d 780, 252 P.2d 581.

We have held that in the ownership, control and supervision of its streets a municipality acts in its governmental and not its proprietary capacity. Thus the erection of traffic signs is a governmental function. Phinney v. City of Seattle, 34 Wash.2d 330, 208 P.2d 879.

However, a municipality may be held liable for injuries resulting from ministerial acts relating to the improvement and maintenance of public streets. 18 McQuillin on Municipal Corporations (3d Ed.) 253, § 53.41. In this state the maintenance and repair of streets for the purpose of keeping them in a reasonably safe condition for public travel is classified by our decisions as a corporate duty with respect to which a municipality is liable for negligence. Hewitt v. City of Seattle, 62 Wash. 377, 113 P. 1084, 32 L.R.A.,N.S., 632; Lund v. City of Seattle, 99 Wash. 300, 169 P. 820; Hagerman v. City of Seattle, supra.

In the present case there is no evidence that West Marginal Way was not properly maintained or repaired. That no defects or obstructions existed in the street itself was conclusively shown by Mr. Bradshaw's testimony that he had traveled this street many times in the past and that it carried heavy traffic without difficulty during the rush hours. Since there was no defect in the street itself (it is not contended that the street was dangerous in any manner except at the very infrequent intervals when trains crossed the pavement), the city could not be liable as a matter of law unless (1) it was under a duty to cut the brush, trees and vegetation growing along the sides of the street (beyond the gravel shoulders) which is alleged to have created an inherently dangerous situation or (2) it was under a duty to erect suitable warning signs near the spur track.

Where a street itself is reasonably safe for public travel it is not rendered inherently dangerous solely because a municipality fails to cut down natural vegetation which tends to obstruct the view at an intersection. Barton v. King County, 18 Wash.2d 573, 139 P.2d 1019, 1020. In that case, which involved a collision between a bicycle and a motor vehicle at an intersection where each operator's view was obstructed by...