Frostman v. Stirrat & Goetz Inv. Co.

• Decision Date: 14 November 1911
• Citation: 65 Wash. 608,118 P. 742
• Court: Washington Supreme Court
• Parties: FROSTMAN v. STIRRAT & GOETZ INV. CO.

118 P. 742

65 Wash. 608

FROSTMAN v. STIRRAT & GOETZ INV. CO.

Supreme Court of Washington

November 14, 1911

Department 1. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by Edward Frostman against the Stirrat & Goetz Investment Company. Judgment for defendant, and plaintiff appeals. Reversed.

Dillon & Dunaway and Reynolds, Ballinger & Hutson for appellant.

Charles A. Riddle and Hughes, McMicken, Dovell & Ramsey, for respondent.

MOUNT J.

Action for personal injuries. The trial court dismissed the action upon motion of the defendant at the close of the plaintiff's evidence. Plaintiff has appealed.

It appears from the evidence that the defendant company was the owner of a brick building located on the east side of Third avenue, in the city of Seattle; that by reason of the widening of this avenue by the city it became necessary for the defendant to remove a part of the building which stood on the condemned area. This involved the tearing down of the old wall and the construction of a new wall on the line of the street as widened, and also certain interior reconstruction work. The defendant applied for and secured a permit from the city to remodel this building, so as to make it conform to the new street lines. Defendant also applied for and secured a permit from the city to use an abutting portion of Third avenue for placing structures and materials thereon, to be used in the course of reconstructing the building. The defendant agreed to comply with the provisions of the city ordinances in regard to such matters. An ordinance of the city provided that, upon the construction of any building so situated, 'When the framework of any building shall have been constructed up to and including the first story above the street or public place, the temporary sidewalk constructed in the street, as hereinabove provided shall be removed and a temporary or the permanent sidewalk shall be constructed under the staging within the sidewalk area, as hereinabove provided, and said sidewalk under the staging shall be kept clear of all obstructions, excepting that building material, tools, and machinery may be carried across said sidewalk into the building or such material tools, and machinery may be hoisted above and conveyed over the staging into the building.' After securing this permit, the defendant let a contract to one Bamberg to tear down and build up the front wall of the building. The plumbing was let to the Ernst Plumbing Company, and the plastering work was let to one Pederson. The defendant did its own carpenter work. At the time the plaintiff was injured, the framework of this building was constructed three stories high above the sidewalk. No temporary sidewalk or staging above the sidewalk had been constructed, as required by the ordinance, or at all. Débris had accumulated around the sidewalk area, so as to impede public travel across the same. The outer walls appear to have been about completed, but men were working upon the inside of the building clearing out débris; some of which was being thrown out of the window openings upon the street. These men doing this work appear to have been in the employ of Bamberg. The plaintiff was working in a trench in the abutting sidewalk area near the curb, under direction of a foreman who was installing cluster street lights for the city. While he was so engaged, a piece of scantling fell or was thrown from the third story of the building, and struck the plaintiff upon the back.

It is apparent that, if the staging had been constructed and in place, as required by the city ordinance, the plaintiff would not have been injured. The trial court was of the opinion, as appears from the record, that the absence of the staging over the sidewalk was not the proximate cause of the injury, and therefore that the defendant was not liable. We are of the opinion that the trial court was in error in this conclusion. It is shown that the plaintiff was within the sidewalk area. He was lawfully there. If the staging had been constructed, as required by the ordinance he would not have been injured. The staging was required for the purpose of protecting persons upon the street from débris which was liable to fall or be thrown from above in such cases. It had no other purpose. The city authorities recognized the liability of such danger, and passed the ordinance in order to safeguard the public who might lawfully be there. It is said that, if this same scantling had been thrown from across the street, or by a trespasser in the building, or wantonly by some workman or other person in the building for whom the defendant was not responsible, the defendant could not be held liable therefor; all of which is probably true. But these facts do not appear in this case, and cannot be assumed, because it is shown here that, previous to the injury, débris was being thrown from the building by men employed...