Bruenn v. North Yakima School Dist. No. 7, Yakima County

• Decision Date: 25 April 1918
• Docket Number: 14024.
• Court: Washington Supreme Court
• Parties: BRUENN v. NORTH YAKIMA SCHOOL DIST. NO. 7, YAKIMA COUNTY.

172 P. 569

101 Wash. 374

BRUENN v. NORTH YAKIMA SCHOOL DIST. NO. 7, YAKIMA COUNTY.

No. 14024.

Supreme Court of Washington, En Banc.

April 25, 1918

Appeal from Superior Court, Yakima County; E. B. Prebee, Judge.

Action by Horatio Bruenn, a minor, by Susie Bruenn, his guardian ad litem, against the North Yakima School District No. 7, Yakima County. Judgment for plaintiff, and defendant appeals. Affirmed.

Harold B. Gilbert, John F. Chesterley, N. K. Buck and McAulay &amp Meigs, all of North Yakima, for appellant.

Guy O Shumate, of North Yakima, for respondent.

MAIN J.

Action to recover damages for injuries claimed to have been sustained while the minor plaintiff was at play on the public school playground. Verdict and judgment for plaintiff in the sum of $5,000.

The injury to the minor plaintiff is alleged to have taken place in November, 1914; the minor plaintiff at that time being between seven and eight years of age. It is alleged that just prior to 1 o'clock on the day of the injury some of the small boys had taken a teeter board from its own upright and placed it across a swing, upon which the plaintiff and a number of other small boys seated themselves and began to teeter. Shortly after engaging in this form of play the school bell rang, when the boys on the opposite side of the teeter suddenly sprang from it, permitting the side on which the minor plaintiff sat to rapidly descend, striking him upon the ankle, and causing the injury complained of. The ground of negligence complained of, and upon which the verdict seems to have rested, was either lack or inadequacy of supervision. We shall notice the errors in the order in which they have been presented:

First. It is claimed that the court committed error in refusing to instruct the jury upon contributory negligence. This assignment is based upon the evidence of the boy that while sitting upon the board he had his legs crossed beneath him; it being maintained by appellant that the crossing of the boy's legs was the proximate cause of the injury, and that such evidence was sufficient to take the question of contributory negligence to the jury. The court below refused to so charge, upon the ground that contributory negligence was not pleaded. It is true that in a number of cases we have held that while contributory negligence was an affirmative defense, and to be proved as any other affirmative defense by the party pleading it, such defense might be established by the testimony of the plaintiff upon either direct or cross-examination. This, however, is a rule of proof, and not a rule of pleading. It was not incumbent on the lower court, in charging the jury, to submit to them any issue not within the pleading. For this reason refusal to submit such issue cannot be held error.

The second error is claimed on the exclusion of testimony. Appellant called a teacher of long experience in school playgrounds, and offered to show that a teeter board constructed as the one upon this playground was not in itself a dangerous instrumentality, and that the school district was in the exercise of reasonable care in providing apparatus of this character. The offer was denied. The second part of the offer was clearly inadmissible, calling for a conclusion to be reached by the jury, and not by any witness. The first part, while a question of fact, was not material to the issue submitted to the jury. The instructions are not included in the record sent up. The lower court, however, in passing upon appellant's offer, announced that he would eliminate the question of the original construction of the teeter board from the jury, and submit to them only the question of failure or inadequacy of supervision. If the court so instructed the jury, and, since there is no contention to the contrary, we will assume it did, the denial of the offer, as not within the issue of negligence to be submitted, was not error.

Third. The verdict is said to be contrary to the evidence. The evidence supporting the verdict is very weak. The weight of the testimony, in our judgment, is to the effect that the boy was not injured at the time or place claimed, but was injured during the forenoon recess, while playing upon the teeter board when in its regular position. That, however, is not for us to decide. The jury has decided otherwise, and the lower court has denied a new trial. We must therefore accept the fact, as found by the verdict, that the injury occurred in the manner and at the place testified to by the boy. This assignment also necessitates a review of the evidence as to the supervision on the playground.

The principal and two of the teachers testified to supervision of the playground on all days between 12:40 and 1 o'clock, which would include the time of the injury. No particular remembrance was had of the day of the accident, no complaint having been made at the time it is alleged to have occurred; testimony being to the effect that supervision was had on every day of the school year. The little boy, however, says he saw no teacher on the playground. This is negative testimony, and of little value. If, as accepted by the jury, the accident occurred in the manner and at the time testified to by the little boy, and at the time, as contended by appellant, a teacher was present, then the jury might have found that the supervision was inadequate or negligent, in permitting the boys to take the teeter board from its own upright and use it in connection with the swing. If the teacher knew it, it was negligence to permit it; and, if she did not know it, it was negligence not to have observed it. For these reasons this claim of error must be rejected.

This opinion, up to this point, was written by the late Judge Morris, after the case was heard by the department to which it was first presented. Upon the hearing en banc, the opinion, as above set forth, was adopted by the court.

The principal question presented upon the hearing en banc was the effect which the act of the Legislature (chapter 92, page 332, Laws of 1917) in 1917 had upon a judgment which had previously been rendered against a school district. That act consisted of one section, which is as follows:

'Section 1. No action shall be bought or maintained against any school district or its officers for any noncontractual acts or omission of such district, its agents, officers or employés, lelating to any park, playground, or field house, athletic apparatus or appliance, or manual training equipment, whether situated in or about any schoolhouse or elsewhere, owned, operated or maintained by such school district.'

The act was approved by the Governor on March 12, 1917, and took effect during the month of June, following. The judgment in this case was rendered on the 19th day of June, 1916, approximately one year prior to the time when the act became effective. There are three possible classes of actions to which the statute might apply: First, causes which had arisen, but upon which no action had been instituted, or causes that might arise in the future; second, actions which had been instituted, but had not gone to final judgment, when the statute took effect; and, third, actions in which a final judgment had been entered when the act became effective.

It is the contention of the appellant that the act applies to all three classes of actions. It is the contention of the respondent that the act does not apply to those actions in which a judgment had been previously entered. The act provides that no action shall be 'brought or maintained.' By the use of the two words brought or maintained it was evidently the legislative intent that they should not be given a synonymous or equivalent meaning. Had the word 'brought' not appeared in the statute, it may be that the word 'maintained' could then be given the meaning as only preventing the institution of actions and as not applying to those which had been previously begun. This was the view entertained by the Supreme Court of the state of Maine in Burbank v. Inhabitants of Auburn, 31 Me. 590. The act which the court was considering in that case contained only the...