Fritch v. King County, 27511.

• Decision Date: 09 May 1940
• Docket Number: 27511.
• Citation: 102 P.2d 249,4 Wn.2d 87
• Parties: FRITCH v. KING COUNTY.
• Court: Washington Supreme Court

102 P.2d 249

4 Wn.2d 87

FRITCH v. KING COUNTY.

No. 27511.

Supreme Court of Washington

May 9, 1940

Department 1.

Action by Roy Fritch, a minor, by and through his guardian ad litem R. O. Fritch, against King County, for injuries sustained in a truck accident. From an adverse judgment, defendant appeals.

Affirmed.

Appeal from Superior Court, King County; Clay Allen, Judge.

B. Gray Warner and F. M. Reischling, both of Seattle, for appellant.

Gordon McGauvran and Charles L. Hamley, both of Seattle, for respondent.

ROBINSON Justice.

This action was brought to recover damages for personal injuries received in an automobile accident, alleged to have been caused by the negligence of King county in maintaining a defective highway and in not giving proper warning of the defective condition.

South 154th street--also known as Renton-Three Tree Point Highway--is an improved highway maintained by King county. Where the accident occurred, it descends the slope of a hill in an easterly direction at a grade of six per cent. At the foot of the grade, it curves to the left and passes under a bridge. The concrete pavement is twenty feet wide. On both sides of the highway, as it descends the hill are guard rails, three feet from the edge of the pavement. In building the highway, a low area was filled, and, Before paving, the fill was permitted to settle for two years. The pavement was then laid in panels, sixty feet in length and twenty feet wide. Down the center of each panel was a 'dummy joint,'--a depression in the concrete one-fourth inch wide by two and one-half inches deep, which was filled with a tar compound. Sometime prior to the accident, the pavement had broken along this dummy joint, and the north half of the pavement had settled or subsided a number of inches, leaving the level of the south half of the pavement higher than the level of the surface of the north half. The extent of this settlement is in dispute, but the evidence shows that in the middle it was not less than two and one-half inches. Some witnesses testified that it was from three to six inches. A witness for the county testified that he measured the depression with a ruler, and that it was two and one-half inches. Appellant contends that the court found that the depression was only two and one-half inches but it appears that the court did not actually find that it was only two and one-half inches, but based its opinion upon the assumption that that was the depth of the depression.

On the night of March 26, 1937, plaintiff and a companion were driving eastward over this highway in a light Ford truck. In passing down the hill, the left front wheel of the truck 'slipped' into the depression caused by the broken pavement, and, in trying to straighten out the car, the driver lost control and the car swerved from one side of the highway to the other, striking the guard rail on the north side, turning completely around, and finally coming to rest against the guard rail on the south side, with the front of the car pointing up the hill. Plaintiff was thrown from the truck and sustained the injuries which are the basis of this suit. From a judgment in his favor for $482, the county appeals.

Appellant does not contend, and the evidence does not indicate, that the car was being driven at an excessive speed, or otherwise than in a reasonably prudent manner. The sole contention is that the defect in the highway was an inconsequential defect and that the county had no reason to anticipate...