Corbaley v. Pierce County

• Citation: 192 Wash. 688,74 P.2d 993
• Decision Date: 23 December 1937
• Docket Number: 26780.
• Parties: CORBALEY v. PIERCE COUNTY et al.
• Court: Washington Supreme Court

74 P.2d 993

192 Wash. 688

CORBALEY v. PIERCE COUNTY et al.

No. 26780.

Supreme Court of Washington

December 23, 1937

Department 1.

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

Action by A. L. Corbaley, as administrator of the estate of Glen Corbaley, deceased, against Pierce County, a public municipal corporation, and others. Judgment for defendants notwithstanding a verdict for plaintiff and in the alternative, granting a new trial in the event judgment was reversed, and plaintiff appeals.

Reversed and a new trial ordered except as to named defendant.

Burkey & Burkey, of Tacoma, and M. F. Porter, of Puyallup, for appellant.

Harry H. Johnston, Pros. Atty., of Tacoma, and John E. Belcher Asst. Atty. Gen., and Charles T. Peterson and Thomas MacMahon, both of Tacoma, for respondents.

HOLCOMB Justice.

This case presents an appeal from a judgment of dismissal entered in favor of respondents, notwithstanding the verdict of the jury in favor of appellant, and in the alternative granting a new trial if the judgment for dismissal is reversed.

This action was instituted by appellant against respondents to recover damages for the wrongful death of Glen Corbaley and funeral expenses, and also to recover damages to an automobile hereinafter referred to.

For many years Pierce county has owned and maintained a dock and ferry slip designated as the 'Fox Island Ferry Slip' (hereinafter referred to as the slip), at the west end of Sixth Avenue Extension road, in the city of Tacoma, on Puget Sound, to enable ferries to load and unload freight and passengers. This slip, which was twelve feet wide and ninety-four feet long, had a plank floor and overhead trusswork of heavy timbers.

Prior to July, 1936, the Skansie Ferry Company owned and operated the ferry Fox Island from this ferry slip. The Washington Navigation Company owned substantially all of the stock of the Skansie Ferry Company, and the latter was, in effect, a subsidiary of the Washington Navigation Company.

On or about June 27, 1927, Pierce County, acting through its duly constituted board of county commissioners, entered into an agreement with the Washington Navigation Company whereby, for a period of ten years, this company agreed to operate a ferry from the Sixth avenue dock across the waters of Puget Sound to various wharves and docks on Fox Island for the transportation of freight and passengers. This contract was held invalid by this court in State ex rel. Washington Navigation Co. v. Pierce County, 184 Wash. 414, 51 P.2d 407, but the Washington Navigation Company continued to operate ferries from the slip. The last departure of the ferry Fox Island from the slip, on the date of the accident referred to, infra, was at or about 6:30 p. m.

The essential facts giving rise to the instant case are these: On the night of August 6, 1936, decedent drove to the home of Miss Sarah West, 609 South G street in Tacoma, arriving there at about 7:45 p. m. Decedent and Miss West went out for a drive in the vicinity of Phyallup in a 1936, two-door Chevrolet sedan and thereafter returned to Tacoma on the Sixth Avenue Extension road, and drove upon the approach leading to the ferry and the slip at the end thereof at or about 11:30 p. m. The approach was twenty feet wide and two hundred forty feet long, and there was a sidewalk adjacent thereto to the right. Lights were burning on the approach when decedent drove thereon. The slip sloped downward toward the Sound. At the end of the slip, adjacent to the water, was a hinged apron about fourteen feet in length. There appears to have been dew on the planks and an oily substance on the apron, which had been dropped from cars driving over it. The automobile stopped approximately in the middle of the ferry slip. Miss West, appreciating the perilous position in which they were situated, stepped out of the car and had just started up the slip when the car fell off the slip into the water, resulting in the drowning of decedent.

Relatively near the slip was a tavern in which lights were burning. It appears there was no gate or barrier of any kind across the slip to prevent decedent from driving thereon. Decedent was driving at a speed not in excess of twenty miles per hour at the time of the accident. The headlights of the car were still burning while the automobile was in the water. When the car was removed from the water, it was found that the ignition key was turned off, the car was in reverse gear, and the emergency brake set tight.

There were several signs present indicating the nature of the structure. The American Automobile Association had road signs approximately five hundred feet from the ferry slip, reading 'Ferry to Pt. Fosdick, Ferry to Cromwell, Ferry to Fox Island.' A sign located on the railing between the waiting room and the truss of the ferry slip read: 'Warning, No permanent parking on this dock.' On the second truss on the left hand side of the ferry slip was the following sign: 'This property for Ferry Use only--By Order Co. Commissioners.' There was also a sign on the gate on the slip reading: 'Stop, proceed only on signal of purser.' This sign was not visible, however, when the gate was open.

At the time of his death decedent was a widower, thirty-eight years of age, and was the father of three minor children who were residing with him and being supported and educated by him. He was a berry rancher in Puyallup and a very sober, industrious, home loving, religious man, and a good citizen.

In October, 1936, appellant presented a claim for damages to the county commissioners of Pierce County by reason of the above accident, which claim was rejected.

Appellant contends it was the duty of respondents to keep the slip lighted during hours of darkness and that it was their duty, when the ferry was not loading or unloading at the slip, to guard the same with a proper barrier, and that respondents at the time of this accident negligently failed to lock the gate and to see that it was securely fastened. Appellant also contends decedent did not discover his peril until it was too late to prevent the automobile from going over the slip into the water. Respondents answered that the death of decedent was occasioned solely through the carelessness and negligence of the deceased.

A number of errors are assigned relating to the admissibility of evidence. Suffice it to say we have examined these assignments and the evidence to which they relate and do not find them to be of merit.

Error is also assigned on the ground that the court gave erroneous instructions to the jury.

Rule VIII(2), 159 Wash. xliii, provides: '* * * Where an objection is based on an instruction of the court, the instruction shall be set forth in the brief in full.'

Since the instructions complained of are not set forth in the brief, as required by the rule of court, supra, they cannot be considered. Scott v. Pacific Power & Light Co., 178 Wash. 647, 35 P.2d 749; Keseleff v. Sunset Highway Motor Freight Co., 187 Wash. 642, 60 P.2d 720; State v. Jones, 188 Wash. 275, 62 P.2d 44; State v. Hussey, 188 Wash. 454, 62 P.2d 1350; State v. Seabrands, Wash., 71 P.2d 393.

Error is also assigned on the refusal of the trial court to retax costs by limiting mileage to one round trip by each witness to and from the place of trial and by allowing witness fees for defendants' witnesses during the first three days of the trial when it was known by defendants' counsel that these witnesses would not be called during that period.

The applicable statute relating to witness fees is Rem.Rev.Stat. § 497, which prescribes: 'Witnesses shall receive for each day's attendance in all courts of this state, besides mileage at ten cents per mile each way, $2.'

This statute is explicit in regard to the per diem compensation of witnesses and of the mileage allowance. Numerous trips by a witness to and from his domicile during a trial might be improper if his domicile is far removed from the locus of the trial, but that is a matter which must be resolved according to the facts of each particular case. It is alleged that respondents' witnesses were prematurely called. It is often difficult to ascertain at precisely what time witnesses must be available. After reviewing all of the facts Before us, we are unable to say that the witnesses' mileage allowances and witness fees were not properly taxed.

Appellant also assigns as error the entering of judgment for all the defendants, notwithstanding the verdict to the contrary.

We have carefully examined the entire record and are convinced that this case presents essentially a question of fact. The primary facts presented which must be considered to determine the ultimate fact, namely, whether decedent's death was occasioned by the negligence of respondents or an attempt to commit suicide include: (1) Whether the gate on the ferry slip was closed and properly fastened at the time of the accident; (2) whether the slip was dark of lighted; (3) whether the signs afforded an adequate warning to decedent; and (4) the credibility of the witnesses.

We shall not attempt to recapitulate the testimony of the many witnesses appearing at the trial, but shall indicate the general trend of the testimony.

It was customary for the purser to close the gate on the slip, and the purser and captain of the ferry (Fox Island) testified that when the ferry left the slip on the night of the accident it was closed and fastened by a rope around the post at about 6:30 p. m. The proprietor of the tavern located on the dock testified he noticed the gate open at 8:30 p. m. on August 6, 1936, and thereupon closed it. It definitely appears from the record, however, that the gate was open at 11:30 p. m. that evening when...