Brown v. City of Walla Walla

• Court: Washington Supreme Court
• Writing for the Court: ELLIS, J.
• Citation: Brown v. City of Walla Walla, 76 Wash. 670, 136 P. 1166 (Wash. 1913)
• Decision Date: 13 December 1913
• Parties: BROWN v. CITY OF WALLA WALLA.

136 P. 1166

76 Wash. 670

BROWN v. CITY OF WALLA WALLA.

Supreme Court of Washington

December 13, 1913

Editor's Note: Modified by 139 P. 36.

Department 2. Appeal from Superior Court, Walla Walla County; Thos. H Brents, Judge.

Action by Florence V. Brown against the City of Walla Walla. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

John F Watson and Rader & Barker, all of Walla Walla, for appellant.

Dunphy Evans & Garrecht, of Walla Walla, for respondent.

ELLIS J.

The plaintiff seeks in this action to recover damages for injuries suffered by being thrown from a buggy by a runaway horse on South Second street in the city of Walla Walla. The material facts are as follows: South Second street runs approximately north and south. Whitman street comes into it from the east almost a block south of where Eagan street comes in from the west. Each of these streets terminates at its intersection with South Second street. At the time of the accident, South Second street was being paved. The concrete base had been laid from south of Whitman street to about the north line of Eagan street. There was a street car track on Whitman street which curved into South Second street and extended therein to the north. There was also a street car track in Eagan street which curved into South Second, and about opposite the north line of Eagan street connected with the other track forming a wye. This curve of the Eagan street track was elevated about four inches. Street cars were in regular operation on these tracks. There was a drop or incline from Whitman street to the concrete base on South Second street estimated by different witnesses at from 8 to 18 inches. Back a short distance from the east line of South Second street, Whitman street was obstructed on the north of the car track by a pile of crushed rock about 60 feet long, 15 feet wide, and something over 4 feet high practically closing the street north of the car track. South of the car track there was a pile of sand 10 or 12 feet wide and 2 1/2 or 3 feet high, and between this and the car track was a concrete mixer practically closing the street south of the track, save a space 8 or 10 feet wide between the mixer and the track. Vehicles had passed through this opening marking a well-defined roadway. The car track was left unobstructed for the operation of street cars. A few feet to the south line of Whitman street, South Second street was barricaded by boards preventing any passage on that street to the south. The accident happened at about 6 o'clock in the evening of Sunday August 7, 1910, when it was perfectly light. Up to this point there was no conflict in the evidence. A conflict arises as to other obstructions in Whitman street. A man employed by the paving company for the purpose of keeping up barriers and placing of lights as danger signals testified that, after the street was torn up, he had endeavored to keep a board with one end resting on the sand or a bag of cement against the mixer, and the other end on a section of drain tile, standing on end just a sufficient distance from the street car track to permit cars to pass, and that at nights he placed on this board a red light and another on the gravel pile north of the track near the street curb; that on the Sunday in question this board had been twice knocked down by street cars passing round the curve, and the last time he replaced it with the north end some three or four feet from the track; that he had placed a red light upon it and another on the rock pile about 25 or 30 minutes before the accident. In this he was corroborated by positive testimony of three other witnesses, two of whom claimed to have been sitting at the time on the front porch of a house located directly across Second street opposite the end of Whitman. The third witness testified that at the time he was sitting in a yard above and overlooking Whitman street and located in the angle formed by the intersection of the south line of Whitman and the east line of South Second streets, and saw the board and lights placed in position. The plaintiff and her niece, who was in the buggy with her at the time it was driven past this point by another occupant, a man who was killed in the accident, testified that there was no board there. In this they were corroborated by the somewhat negative testimony of several witnesses, who were in the vicinity shortly before or shortly after the accident, who said they saw no board, and some of them that they saw no lights. The niece testified that she saw the light on the rock pile near the north curb of the street and a light near the mixer just as she passed it, but behind a pile of sand, so as not to be visible to one coming down Whitman street till opposite it and too late to turn back, and that she then called it to the attention of Owsley, the driver, who observed that it was all right, as the tracks indicated that other teams had driven in there. The evidence was without conflict that some horse-drawn vehicles had been driven from Whitman into South Second street on this and prior days, but that many, on the drivers observing the conditions, had been turned and driven back up Whitman street.

On the day of the accident, the plaintiff and Owsley had driven to Walla Walla from Dayton, where she resided, leading behind their vehicle a horse belonging to Owsley, which he and the plaintiff were endeavoring to trade to one Wood, a horse dealer of Walla Walla. About 5 o'clock in the afternoon Owsley went to the livery stable and had the horse hitched to a single buggy. While being driven out of the barn down a slight incline, the horse became frightened and broke the buggy shafts. These were replaced, and, the horse being again hitched to the buggy, Owsley proceeded to the hotel or lodging house where the plaintiff and her niece were and took them into the buggy. The plaintiff, being an expert horsewoman, took the reins and drove to Wood's home to inspect his horse upon which Owsley desired her opinion. From there the party started to drive to the home of the niece by way of Whitman and South Second street. When they reached the obstructions in Whitman street, Owsley drove down the slight incline onto the concrete, intending to go south, but, then noticing the barrier on South Second street, turned to the north, when the horse became frightened and ran away, the buggy wheels striking the raised curve of the street...