Collais v. Buck & Bowers Oil Co., 24695.

• Decision Date: 29 November 1933
• Docket Number: 24695.
• Citation: 175 Wash. 263,27 P.2d 118
• Court: Washington Supreme Court
• Parties: COLLAIS v. BUCK & BOWERS OIL CO.

27 P.2d 118

175 Wash. 263

COLLAIS v. BUCK & BOWERS OIL CO.

No. 24695.

Supreme Court of Washington

November 29, 1933

Department 2.

Appeal from Superior Court, Pierce County; Ernest M. Card, Judge.

Action by Marjorie E. Collais against the Buck & Bowers Oil Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

E. N Eisenhower, of Tacoma, for appellant.

H. H Johnston, of Tacoma, for respondent.

HOLCOMB Justice.

This is an action for damages for personal injuries and destruction of wearing apparel caused by respondent slipping on some oil upon the sidewalk adjacent to the property occupied by appellant. The cause was tried to the court without a jury. At the conclusion of respondent's case, a motion for nonsuit was denied and the trial ultimately resulted in a judgment for respondent. Appellant thereafter moved for a new trial and upon a denial thereof this appeal followed.

The facts may be thus stated: St. Helen's avenue, in Tacoma runs in a northerly and southerly direction and is intersected practically at right angles by sixth avenue. The property on the northeast corner at this intersection was occupied and used by appellant as an automobile service station, the entrance being from and practically on a level with St. Helen's avenue. In conjunction with and as a part of this station there was the usual pit into which the waste oil from automobile crank cases was drained. This pit was some thirty feet from each of the streets mentioned. Because of the down grade of Sixth avenue from St. Helen's avenue, a concrete retaining wall, perhaps thirty feet long, ran parallel with and about two and one-half feet from the inside line of the Sixth avenue sidewalk. At the end of this wall was a room having a single entrance, which was from Sixth avenue. The waste oil taken from the automobiles was conveyed from the pit through a pipe and thence into a barrel placed in this room below.

Shortly Before 10 o'clock on the morning of September 1, 1932, as the respondent was walking easterly from St. Helen's avenue down grade on the north side of Sixth avenue, and as she arrived about apposite the entrance to appellant's room where the abovementioned oil was kept, she slipped on some waste oil on the sidewalk and sustained a knee injury and also damage to her clothing caused by the oil.

The complaint charged that appellant '* * * carelessly and negligently permitted to be and remain upon the sidewalk on said Sixth Street directly adjacent said building where said oil was stored a quantity of said oil the effect of which was to make said sidewalk at said point exceedingly slippery and dangerous to pedestrians who might be using said sidewalk.'

It further charged that '* * * prior to said accident the defendant knew or by the exercise of reasonable care and precaution should have known of the dangerous condition of said sidewalk and carelessly failed to make said sidewalk safe for pedestrians, well knowing that pedestrians used said walk, and failed to give the plaintiff any warning of the dangerous condition thereof.'

It is first urged by appellant that its motion for nonsuit should have been granted for the reason that respondent was guilty of contributory negligence.

Respondent's testimony was to the effect that she had traveled on that particular sidewalk on an average of once a week for more than two years; that the walk was always in a dirty condition and often wet. That on this occasion she came upon what she thought was the usual bit of dirt or water and Before she could take a second step she slipped and fell, whereupon she discovered that it was oil she had stepped in. A witness for respondent, a lady who happened along while respondent was still down on the walk after her fall, testified that she used this walk frequently and that she too, slipped on this oil and would have fallen had she not grabbed hold of her young sister who was with her. She further testified 'it would not be possible to walk around it (the oil) on the sidewalk, of that I am very sure,' and 'on that morning the oil was very apparent, when you examined it. At first glance anyone would take it for water on the sidewalk, but looking at it you could easily recognize it as oil.'

There was still another witness for respondent who testified that 'on that morning the oil was very apparent, when you examined it,' and further that 'at first glance anyone would take it for water on the sidewalk but looking at it you could easily recognize it as oil.'

Respondent's conduct cannot properly be adjudged by the facts as they appeared after her fall but rather by the conditions as they appeared preceding the accident which revealed the hazard. Contributory negligence, as the phrase implies, involves the element of want of care. That element is so far lacking in respondent's case that it is needless to discuss it further, except to say that the lower court was well justified in holding that respondent had shown herself not chargeable with contributory negligence.

It is also urged by appellant that the motion for nonsuit should have been granted for the reason that respondent's evidence failed to show that appellant was in any way responsible for the condition of the sidewalk, or that any act of appellant in any way contributed to the accident.

It is not contended by respondent that appellant, or any one in its employ, actually placed the oil upon the sidewalk. The theory, therefore, upon which respondent may seek to hold appellant liable is that as an occupant and operator of property abutting a street, it violated its duty to the public in failing to maintain and operate that property and business with reasonable regard to the public safety and that such failure was the proximate cause of respondent's accident.

While it is the law that one whose property abuts a street is not a guarantor or an insurer of the absolute safety of the sidewalk, it is nevertheless his duty, as between himself and the public using that street, to exercise at last reasonable care in keeping his property and in conducting his business thereon in a safe and prudent manner. 2 Shearman & Redfield on the Law of Negligence (6th Ed.) 879, states the rule as follows: 'The extent of his (abuttor's) obligation, with reference to adjacent highways, is to use and keep his own premises so as not to render such highways unsafe for ordinary travel, culpably failing in which he is liable to travelers thereon.'

To the same effect is the case of Poth v. Dexter Horton Estate, 140 Wash. 272, 248 P. 374, 375, wherein we said: 'The appellant owned and controlled the building from which the object which injured her [respondent] came. It was the appellant's duty to see that the building was so constructed and maintained as not to be a source of danger to the users of the street in its front. Its neglect of this duty is negligence.'

If one fails to perform that duty and that failure is the effectual factor in doing injury to one using the street, even though the act of a third party may be the immediate cause of the injury, still that failure to fulfill the duty mentioned may...