Bullock v. King County

• Decision Date: 16 October 1934
• Docket Number: 24745.
• Citation: 36 P.2d 609,179 Wash. 167
• Parties: BULLOCK v. KING COUNTY et al.
• Court: Washington Supreme Court

36 P.2d 609

179 Wash. 167

BULLOCK v. KING COUNTY et al.

No. 24745.

Supreme Court of Washington, En Banc.

October 16, 1934

Appeal from Superior Court, King County; Kazis Kay, Judge.

Action by Dora Bullock, a minor, by Lee Bullock, her guardian against King County, the City of Seattle, and S. A. Moceri Incorporated. From a judgment for the other defendants after plaintiff had taken a voluntary nonsuit as to King County plaintiff appeals.

Reversed and remanded, with directions.

Rummens & Griffin, of Seattle, for appellant.

A. C Van Soelen and E. I. Jones, both of Seattle, for respondents.

BLAKE Justice.

This is a negligence action tried to the court without a jury. At the close of her own case, plaintiff took a voluntary nonsuit as to King county. The trial proceeded against the other defendants, and resulted in findings in their favor. Plaintiff appeals from judgment dismissing the action.

The essential facts, as disclosed by the evidence and found by the trial court, are as follows: Roxbury street runs east and west. Its middle line is the boundary between the city of Scattle and King county. Thirty-Fifth Avenue Southwest runs north and south. For some years the east eighteen feet of Thirty-Fifth avenue has been paved with concrete, the pavement ending at the north line of Roxbury street. Thirty-Fifty avenue extends on across and to the south of Roxbury street as a graveled highway. The city's side of Roxbury street has never been improved. Prior to July 17 1931, the county let a contract to respondent S. A. Moceri, Inc., for the paving, with concrete, of the county's side (the southerly half) of Roxbury street, from Thirty-Fifth avenue on the west to a point some distance east. The city thereafter arranged with Moceri to pave so much of the intersection as was necessary to connect the old pavement on Thirty-Fifth avenue and the new pavement being laid on Roxbury street. In order to do this it was necessary to excavate the intersection to the level of the bottom of the pavement end on Thirty-Fifth avenue. This excavation was done some time in June, 1931. Thirty-Fifth avenue, however, was not closed to traffic. A pole, or timber, was placed at the end of the pavement on Thirty-Fifth avenue. Dirt and gravel were thrown over it, making an inclined plane, or sort of ramp, between the surface of the pavement and the floor of the intersection. Barricades were maintained across Roxbury street, both on the east and west sides of Thirty-Fifth avenue. At night red lanterns were kept lighted on each of the barricades. No barricades nor red lights were maintained across or on any part of Thirty-Fifth avenue. There was a 300-watt electric light suspended over the intersection.

About 10:30 of the night of July 17, 1931, appellant was riding in the rear seat of a Ford sedan, approaching Roxbury street from the south on Thirty-Fifth avenue. None of the occupants of the car knew of the condition of the intersection. The car crossed the intersection at the rate of twelve to fourteen miles an hour. When it went up onto the pavement, appellant was bounced to the top of the car, sustaining the injuries for which she brought this action.

The ultimate finding upon which the court based its judgment was that the intersection was 'in a reasonably safe condition for travel.' The theory of the finding seems to be that the condition of the intersection was reasonably safe, in view of the construction work going on at the time. This however, is not the standard by which liability is to be determined. It was the city's duty to use reasonable care to maintain the intersection in a reasonably safe condition for ordinary public travel. Sutton v. Snohomish, 11 Wash. 24, 39 P. 273, 48 Am. St. Rep. 847; Larsen v. Sedro-Woolley, 49 Wash. 134, 94 P. 938; Swain v. Spokane, 94 Wash. 616, 162 P. 991, L. R. A. 1917D, 754. A street undergoing repairs may be closed to traffic. Peterson v. Seattle, 40 Wash. 33, 82 P. 141, 5 Ann. Cas. 735; Stack v. Dowell, Inc., 172 Wash. 9, 19 P.2d 125. Under some conditions, it may be the city's duty to close a street under repair. McQuillin, Municipal Corporations (2d Ed.) § 2992. In any event, it can escape liability for failure to maintain a street in reasonably safe condition for travel only by setting up suitable barricades and lights to warn travelers of the unsafe condition of the street. Peterson v. Seattle, supra; Tagge v. Roslyn, 51 Wash. 258, 98 P. 668; Lautenschlager v. Seattle, 77 Wash. 12, 137 P. 323. The guards and warning devices must be sufficient to apprise a traveler, using reasonable care, that the street is not in a safe condition for ordinary travel. Hunter v. Montesano, 60 Wash. 489, 111 P. 571, Ann. Cas. 1912B, 955; McQuillin, Municipal Corporations (2d Ed.) § 2993. McQuillin there says: 'It is the duty of the municipality, when the obstructions are placed in the street, to use such means as are reasonably necessary to warn those using the street of the presence of the obstruction, and it is generally a question for the jury, 'under the particular facts in each case, to determine whether or not the means used for this purpose were reasonably sufficient. Guard rails, lights, or watchmen, any or all, might be required, according to the local conditions. In some instances guard rails might be amply sufficient, in others, lights, while in still others additional means might be required. No hard and fast rule can be laid down fixing the means that shall be employed in each...