Gabrielsen v. City of Seattle

• Decision Date: 06 December 1928
• Docket Number: 21064.
• Citation: 150 Wash. 157,272 P. 723
• Parties: GABRIELSEN v. CITY OF SEATTLE et al.
• Court: Washington Supreme Court

272 P. 723

150 Wash. 157

GABRIELSEN v. CITY OF SEATTLE et al.

No. 21064.

Supreme Court of Washington

December 6, 1928

Department 1.

Appeal from Superior Court, King County; Howard M. Findley, Judge.

Action by Louis H. Gabrielsen against the City of Seattle, Stephen Berg and wife, C. C. Perrine and wife, and others. From a judgment against all the defendants, except Berg and wife the remaining defendants, except Perrine and wife, appeal. Affirmed as to defendants City and Perrine, and reversed and remanded, with instructions as to the other appellants.

Thomas J. L. Kennedy, Arthur Schramm, A. C. Van Soelen, Roberts Skeel & Holman, and Altha Perry Curry, all of Seattle, for appellants.

Riddell & Brackett and T. N. Fowler, all of Seattle, for respondent.

FULLERTON C.J.

Seneca street is a public street of the city of Seattle. Its course at the place of the accident hereinafter mentioned, is approximately east and west. Between the streets known as Fourth avenue and Third avenue it is paved with stone blocks and has a downward slope of 15.4 per cent. Midway of the block between the avenues named is an alley extending north and south.

The appellant Pacific Telephone & Telegraph Company owns the lot lying on the north side of Seneca street, extending from Third avenue back to the alley. Prior to the time of the accident referred to, there had been constructed a nine-story building on the lot, and at that time the appellant was engaged in adding three stories thereto. The construction work was being performed by the appellant Sound Construction & Engineering Company, under a contract entered into with the Pacific Telephone & Telegraph Company. In the construction work it was found convenient to use a part of Seneca street for depositing material and erecting hoisting works. To that end, application was made to the city for a permit so to do, and such a permit was granted. The space used was of varying width, extending into the street at the alley some 14 feet, and widening as it extended west to a distance of 20 feet. The space was inclosed by a temporary wall or fence.

On property lying to the south of the street immediately east of the alley, the defendant Berg was also erecting a structure. He, too, had applied to the city for and was granted leave to use a part of the street in front of his property for use in connection with the construction of his building. This space extended into the street some 12 feet, and was fenced off with a structure similar to that used by the other builders. Measured laterally at the alley between the lines of the structures, the passageway left in the street was 16 feet wide; measured diagonally between the corners of the structures, the distance was 26 feet. While the passageway left open for travel would permit an automobile to be driven straight up or straight down the street, the more usual method seems to have been, when passing from Fourth avenue to Third, to enter the street on its right side, pass down to the alley and there turn between the structures to the left, and then pass down the street on its left side for the remainder of the way.

On the morning of August 17, 1926, after the buildings had been in course of construction for about one month, the respondent, Gabrielsen, was painting a sign located above the sidewalk on the south side of Seneca street, where the street interects with Third avenue. The sign was elevated some distance above the sidewalk, and he was standing on a ladder. At that time the defendant Perrine started down the street from Fourth avenue. He was driving a Ford touring car. For the first part of the way he drove in the usual course. As he approached the alley and was making the turn, he observed a milk truck going in the same direction, the driver of which was having trouble getting down the street. To quote his own narration:

'He [the driver of the milk truck] had been going slowly, and he started up again. He started up his car a little bit, and I was about 10 feet behind him, when he stopped again. He was having a hard time. His car began swerving to the left, and, when he put on his brakes, I put on my brakes, too, and that made it start to skid. I had my brakes set, and I started to skid, and bent to the left and tried to avoid him. Just as I got to the alley there was grease on there, and it caused me to skid to the left, and, by doing so in time to avoid hitting him, the car started to skid and went over the sidewalk, down on the sidewalk until I got to the corner, and to avoid hitting the lamp post, I swerved the car to the left and went over Third avenue, and stopped the car almost to the alley between Second and Third on Seneca.'

Elsewhere Perrine testified to an undue accumulation of grease on the street, particularly at the alley, where cars driven over the street made the turn. His testimony is not clear--at least, it is not so to us--as to the place where the car he was driving entered onto the sidewalk; however, the shortest measurement given as the distance between that place and the place where the respondent was working was some 110 feet. Other witnesses for the respondent testified to an undue accumulation of oil and grease on the street at the place where Perrine's automobile began to skid. Others, however, on the part of the appellants, testified that there was no more oil or grease on that street than there was on the streets generally in the city of Seattle, and not so much as there was upon some of the streets more traveled by automobiles than was this one. They accounted for its unusual slipperiness on the day in question by the fact, conceded by all of the witnesses, that it was raining quite hard on that morning.

As the defendant Perrine passed the respondent on his course down the sidewalk, he struck the ladder on which the respondent was standing, knocking it over, and causing the respondent to fall. From the fall the respondent received severe, if not permanent injuries. In this action, brought to recover for the injuries suffered, the respondent made defendants the city of Seattle, the Pacific Telephone & Telegraph Company, the Sound Construction & Engineering Company, Berg and his wife, and Perrine. At the trial, the jury returned a verdict in his favor against all of the defendants, except Berg and wife, and a judgment was entered in accordance with the verdict.

In his complaint, the respondent charged the defendant Perrine with negligence in driving his automobile, averring that he drove at an excessive rate of speed, and failed to keep it under control. As to the other defendants, he charged them with contributing to the negligence of the defendant Perrine, by placing unlawful obstructions in the street, and by suffering the street, particularly at the alleyway, to become covered with an undue accumulation of oil and grease, rendering it dangerous to operate automobiles over it.

The defendant Perrine has not appealed from the judgment entered, and, of course, in so far as the judgment affect him, it is not a matter of concern in this court. On another branch of the case, however, it was thought material to inquire whether there was evidence from which the jury could find that Perrine was guilty of negligence in the operation of his automobile. But, without detailing the evidence, we think it was sufficient to warrant the jury in finding that he was negligent in this respect. It seems to us that it points to negligence in two particulars--that he drove down the street, in the light of the situation apparent to him, at an excessive rate of speed; and that the brakes on the automobile were so far out of condition as to be practically useless.

The trial court, in its charge to the jury, while it stated with some minuteness the issues made by the pleadings, did not take the view that the obstructions placed in the street by the defendants, who were engaged in the construction of their buildings, were in any sense unlawful or to be classified as nuisances. On the contrary, it charged the jury, in substance, that the city of Seattle, in the exercise of its governmental functions, has the power and right to close any of its streets, either in whole or in part, whenever it deems it reasonably necessary so to do, and that it could exercise this right in favor of contractors and builders engaged in construction work upon property adjacent to the street. The court permitted a recovery against the city on the theory that the city was negligent in its care of that part of the particular street which it permitted to remain open for public travel, in that it suffered to accumulate and remain thereon oil and grease in such quantities as to render it dangerous for public travel.

The theory on which it permitted the contractor and owners to be held, it stated to the jury in the following language:

'You are instructed that a property owner whose...