Briscoe v. School Dist. No. 123, Grays Harbor County

• Decision Date: 14 January 1949
• Docket Number: 30330.
• Citation: 32 Wn.2d 353,201 P.2d 697
• Parties: BRISCOE v. SCHOOL DIST. NO. 123, GRAYS HARBOR COUNTY.
• Court: Washington Supreme Court

201 P.2d 697

32 Wn.2d 353

BRISCOE v. SCHOOL DIST. NO. 123, GRAYS HARBOR COUNTY.

No. 30330.

Supreme Court of Washington

January 14, 1949

Department 1

Rehearing Denied Feb. 24, 1949.

Suit by Eugene Briscoe, by Milton Briscoe, his guardian ad litem against School District No. 123, Grays Harbor County, State of Washington, being the District in which Ocosta is located to recover for injuries sustained by the plaintiff while engaged in playing an athletic game with fellow-students on school grounds of the defendant. From a judgment dismissing the action, the plaintiff appeals.

Judgment reversed and cause remanded with instructions to grant a new trial.

MALLERY J., dissenting.

Appeal from Superior Court, Grays Harbor County J. M. Phillips, judge.

F. W. Loomis, of Aberdeen, for appellant.

Donn F. Lawwill, of Aberdeen, for respondent.

STEINERT, Justice.

Plaintiff through his guardian ad litem, brought suit to recover damages for personal injuries sustained by him while engaged in playing an athletic game with fellow students upon the school grounds of the defendant school district. He alleged in his complaint that the defendant had been negligent, in that it had failed to provide proper supervision of group play in progress on the school premises during an afternoon recess period, and that such negligence was the proximate cause of the injury which he then and there sustained.

The defendant demurred to the complaint and, upon stipulation of counsel, the court entered an order overruling the demurrer.

In its answer, subsequently filed, the defendant admitted that the plaintiff had sustained certain injuries while engaged in group play in the school yard, during an afternoon recess period, but denied that the injury was of the gravity alleged or that it was proximately caused by any negligence on the part of the defendant, and then, as affirmative defenses, alleged: (1) that the plaintiff's injuries were caused, or materially contributed to, by his own negligence, and (2) that plaintiff's action was barred by the provisions of Rem.Rev.Stat. § 4706.

Replying to the affirmative matter alleged in defendant's answer, plaintiff denied that he had been contributorily negligent and also denied that his action was barred by the statutory provision referred to above.

Upon these issues, framed by the pleadings, the cause was tried Before a jury. At the close of plaintiff's case, the defendant, through its attorney, interposed a challenge to the sufficiency of plaintiff's evidence, and moved for judgment of nonsuit, on the grounds: (a) that no evidence had been presented from which the jury could find that the defendant had been guilty of negligence with respect to plaintiff; (b) that even if there was such evidence of negligence, still the plaintiff had made no showing of proof from which the jury could properly find that defendant's negligence was the proximate cause of plaintiff's injury; and (c) that plaintiff's evidence proved that his action was barred by the provisions of Rem.Rev.Stat. § 4706.

Following argument by counsel on the challenge and motion, the court indicated that it would reserve any ruling thereon until the defendant had submitted its evidence.

After both sides had rested, defendant renewed its challenge to the sufficiency of the evidence and its motion for nonsuit, and also moved that the court direct a verdict in favor of the defendant. The court granted the motion for directed verdict, and judgment was thereafter entered, dismissing the action and awarding to the defendant its costs and disbursements. Plaintiff appealed.

The principal question Before us is whether, after careful consideration of the testimony adduced at the trial, the only conclusion that can fairly be drawn therefrom is that the record discloses no substantial evidence such as would require the submission of the case to the jury on the issues of negligence and proximate cause.

The facts, as the jury would have been entitled to find them, had the case been submitted to it at the conclusion of all the evidence, are as follows.

The appellant Eugene Briscoe is a minor. On November 16, 1944, the day of the injury concerning which this suit is being waged, he was eleven years of age and was a sixth grade student, in regular attendance at the public school of Ocosta. This school is a component part of the defendant school district No. 123 and is located in Grays Harbor county.

The physical facilities of the Ocosta school include a group of three buildings and a play shed, located upon its school grounds. To the left of the main, or high school, building, as one faces it, there is a playfield containing a baseball diamond and a football field. Adjacent to the right front half of the main building, and also to the right-hand side thereof, is a lawn approximately thirty feet wide and one-half block long in the front, and one hundred feet wide and one-half block long on the right, of the building.

The daily procedure in the school was to have a fifteen-minute recess period for all primary grades up to, and including, the sixth, at ten o'clock in the morning and again at 1:45 in the afternoon. It was common practice, sanctioned by the school authorities, for the school children to utilize the lawn in front, and to the right, of the main building for a playground during these recess periods, this area being preferred by many of the pupils, because the grass in that locality was in better condition than the grass on the established playfield.

No regular physical education program for the primary grades from the first to the sixth, inclusive, was in force at the school. In lieu of such program, the pupils resorted to the playfield or the school lawn during the two fifteen-minute periods. The activities in which the school children engaged during these short recess periods were not scheduled or directed by the school authorities. On the contrary it was the practice, with certain limitations, to allow the children to take part in any game which at the particular time or season of the year was popular with the age group involved.

The game in popular favor among the boys of plaintiff's age group on the day of his injury, and for some time prior thereto, was known as 'keep-away,' which was played with a football furnished by the school. The month during which the game was played being November, and it being a fact that the school authorities had, with respect to the recess periods, prohibited the playing of football, as that game is customarily played, the jury could well have inferred that the boys had selected the game of keep-away, which was not prohibited by the school, as a reasonable substitute for the traditional fall athletic sport.

The game of keep-away was played in the following manner: The boys would first choose sides, and the ball would thereupon be thrown into the air. The player who managed to gain possession of the ball would then either run with it or else throw or hand it to another player on his side, and this maneuver would be repeated by the receiving player. The purpose or object of the game was to maintain possession of the ball for as long a time as possible. The opposing side would in the meantime bend its efforts toward getting possession of the ball and executing similar maneuvers, with the same object in view. The side or team which had possession of the ball at the end of the recess period was considered to be the winner of the game. Any additional rules that might be deemed necessary were agreed upon as the game progressed. In other words, the players 'made up their rules as they went along.'

Subsequent to the opening of the 1:45 afternoon recess period on the day on which appellant was injured, the following events occurred: A group of boys from the fifth and sixth grade classes went to the school office to get a football. They had agreed on the previous day as to the division of the players into two teams. Having procured the football from the office, they proceeded out of the building onto the school lawn where the game was immediately begun in the manner above described.

After five or ten minutes of the recess period had elapsed, the appellant came into possession of the ball. Rather than immediately throwing or handing it to another member of his team, he began running with the ball and was closely pursued by several members of the opposing team. Among the pursuers was one Alfred Persson, who, upon overtaking appellant, grabbed him around the upper part of the waist and threw him to the ground in a tackle, landing on top of him. A number of players who were following close behind young Persson and appellant tumbled or piled on top of the latter two, either accidentally or purposely.

Upon striking the ground on his right side, appellant experienced a sharp pain in his right arm in the area of his elbow. After rising to his feet, appellant found that he was unable to throw the ball and that his arm pained him severely. One of the players then helped appellant to the office of the school principal, Mr. Aase, who, upon ascertaining that the boy was seriously injured, inquired of him as to the identity of his family physician, then telephoned to the doctor for an appointment, and immediately thereafter drove to the latter's office, taking the appellant with him. X- rays revealed a fracture and a dislocation of the elbow, necessitating an operation.

From the beginning of the recess period until the time of appellant's injury, being a period of from five to ten minutes' duration, none of the teachers were present to supervise the play of the fifth and sixth grade pupils on the school lawn. A rule which had been promulgated by the supervisor of the defendant school district, to be enforced...