Fichtenberg v. Lincoln County
| Decision Date | 03 January 1929 |
| Docket Number | 21254. |
| Citation | 273 P. 178,150 Wash. 459 |
| Parties | FICHTENBERG et ux. v. LINCOLN COUNTY. |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, Lincoln County; Joseph Sessions, Judge.
Action by Jake Fichtenberg and wife against Lincoln County. From a judgment for plaintiffs, defendant appeals. Affirmed.
Joseph H. Johnston, of Davenport, and W. W. Zent, of Spokane, for appellant.
Pettijohn & McCallum, of Davenport, for respondents.
Jake Fichtenberg and his wife brought this action against Lincoln county to recover damages sustained upon their automobile going into an opening in a county road caused by the removal by the county of the floor or covering over a narrow stockway. The county has appealed from a judgment on a verdict in favor of the plaintiffs.
Much of the evidence was not conflicting, as follows: The respondents were familiar with the roadway which at the scene of the accident ran north, downbill, the way respondents were traveling. The total length of the hill was about 800 feet. The floor or covering of the stockway, or bridge as it was called, was about 550 feet from the top of the hill; the average grade of that portion of the hill being 10 per cent a part of it being 13 1/2 per cent. The grade of the road north of the bridge was not so great. The roadway was on a fill commencing near the top of the hill the fill being about 9 feet high at the bridge, and the surface of the road as it had been for some time was that the surface of the bridge was in a depression, the lower or farther side of the bridge as respondents were driving being 8 inches below the general line of the surface of the road at that point. Running with the roadway, and across each end of the bridge, there had been a 2 by 4 piece of timber, and from each corner of the bridge one or more boards flared off down the grade to a fence. On the day of the accident, the road foreman, with help, was engaged in removing the stockway altogether and filling it to the proper surface of the roadway. By 1 o'clock they had taken away the bridge, the 2 by 4 railings, and a part of all of the boards extending down the grade to the fences. About that time the respondents drove down the hill. Their automobile ran into the hole across the roadway, causing the injuries complained of. There had been rain the day before, a freeze at night, and a softening of the road during the day causing it to be slippery. There was no barrier, flag, or signal of danger of any kind on or across the roadway. Other than the foregoing facts, the evidence was conflicting. That on the part of the appellant was to the effect that the road foreman, observing respondents' car near the top of the hill, got into the roadway on the same side of the open stockway, advanced rapidly up the hill towards their approaching car frantically waving a spade held in his hands, and shouting to the respondents to stop; that the respondents continued their speed of 30 to 35 miles an hour; that he had to step out of their way as their automobile came on; and that finally respondents applied brakes to their car, but too late, the car skidding 60 feet into the open ditch. On the contrary, the evidence on behalf of the respondents was that their speed down the hill never exceeded 15 to 20 miles an hour; that they saw no one until within 150 feet of the hole, when they observed a team to their left below the grade and about the same time saw the road foreman climbing up the grade to the roadway at a point beyond the hole, then start towards them waving his empty hands; that they reduced the speed of the car somewhat; that the foreman yelled to them to stop; that immediately and at the same time noticing the hole, he applied all his brakes, but the car skidded 30 or 40 feet into the hole, at which time the road foreman was still on the other or south side of the hole; and that no other person made any attempt whatever to save them from danger.
Under these facts, that is, those not disputed together with respondents' version of those in dispute, and particularly in view of the circumstances that the bridge as it had been used and was known to ...
To continue reading
Request your trial