Gerritsen v. City of Seattle

• Decision Date: 17 September 1931
• Docket Number: 23150.
• Citation: 164 Wash. 459,2 P.2d 1092
• Parties: GERRITSEN v. CITY OF SEATTLE et al.
• Court: Washington Supreme Court

2 P.2d 1092

164 Wash. 459

GERRITSEN v. CITY OF SEATTLE et al.

No. 23150.

Supreme Court of Washington

September 17, 1931

Department 1.

Appeal from Superior Court, King County; Robert M. Jones, Judge.

Action by Peter Gerritsen, by John Gerritsen, his guardian ad litem against the City of Seattle and the Seattle School District No. 1. Judgment for the defendant Seattle School District No 1. From judgment for plaintiff against it, the City of Seattle appeals.

Reversed and action dismissed.

A. C Van Soelen, C. C. McCullough, and Walter L. Baumgartner, all of Seattle, for appellant.

Philip Tworoger and A. L. Maslan, both of Seattle, for respondent.

PARKER J.

The plaintiff, a minor, by his guardian ad litem, commenced this action in the superior court for King county seeking recovery of damages for personal injuries suffered by him alleged as the result of the negligence of the defendants city and Seattle school district No. 1, as follows: 'That on the 4th day of October, 1929, plaintiff was riding a motorcycle, and coming down along East Union Street going in a Westerly direction, the plaintiff being on the North side of East Union Street, that being the right-hand side of the said East Union Street for traffic in a Westerly direction. That he was going along carefully at the rate of about fifteen miles an hour, and in the exercise of due care. That the defendants, the City of Seattle, and Seattle School District No. 1, acting jointly, had stretched a chain across the said East Union Street from the sidewalk on the North side of the street to the sidewalk on the South side of said East Union Street, without putting up any warning, either in the nature of a signal or having some one there to warn vehicles going along said East Union Street. That the plaintiff, in the exercise of due care in coming along said East Union Street, was unable to see the said chain, and as the result thereof ran into the said chain with such great force and violence that he was thrown from his motorcycle into the street, receiving the following injuries. * * *' The city and school district each denied negligence on its part and alleged negligence on the part of the plaintiff as the proximate cause of his injury. The cause proceeded to trial in the superior court sitting with a jury, at the conclusion of which the jury found for the plaintiff and against the city, awarding to him recovery against the city in the sum of $750; and also found for the school district and against the plaintiff, denying to him recovery against the school district. The city then moved the court for judgment in its favor notwithstanding the verdict rendered against it, and also moved the court to arrest the entry of judgment against it, 'because the jury returned its verdict herein in favor of the co-defendant, Seattle School District No. 1, said verdict so returned being in law a bar to the entry of any judgment in this cause against the defendant, the City of Seattle.' The court denied these motions and rendered judgment in favor of the plaintiff and against the city in the sum of $750 as found by the jury. From this disposition of the cause the city has appealed to this court.

The principal contention here made in behalf of the city is that it is entitled to have the court refrain from entering any judgment against it upon the verdict of the jury rendered against it because of the verdict of the jury exonerating the school district, and is entitled to a judgment of dismissal.

The facts disclosed by the evidence touching this contention may be summarized as follows: The school district maintains for primary and grammar grade pupils a school-house and grounds occupying the block bounded on the east by Summit avenue, on the north by Pike street, on the west by Crawford place, and on the south by East Union street. The area of the block, aside from the portion occupied by the school building, offers a limited area for playground for the pupils. The city authorities granted to the school district, upon request made in its behalf, the privilege of closing to vehicle traffic the roadway portion of Union street adjoining the school block on the south between the west line of Summit avenue and the east line of Crawford place during recess play periods of the school, which continued approximately from 10 a. m. to 2 p. m.--that is, the play periods of the different grade pupils during school days--this to enable the pupils to safely play in that portion of Union street during those play periods. The city left entirely to the school district the furnishing, placing, and removal of appropriate barriers and warning signs evidencing the closing of the street during those periods. This the district did; the city doing nothing to that end other than granting such privilege to the district. The district furnished heavy iron upright standards set in heavy iron bases to place in the middle of the street, also wooden posts permanently set in the parking near the curb on each side of the roadway, and also heavy chains to run from post to post, and to attach to the iron standards in the middle of the street. On top of each of these standards, about five or six feet above the pavement, there was a horizontal metal elliptically shaped sign about fifteen inches long horizontally and about ten inches wide, on which, in large plain letters, appeared the words 'Street Closed.' It had been the custom of the district to put and keep these chains and iron standards in place during the play periods only, and at all other times to store them in its school building. The plaintiff was, at the time he was injured, about 17 years old. He was then employed by a messenger company, carrying messages and parcels about the city. In this work he rode a motorcycle. His employer's place of business was in the business portion of the city a considerable distance westerly from the place of the accident. His home was some considerable distance east of the place of the accident. He could go and come between his home and his employer's place of business either along Pike street or along Union street. It was his custom to go home for lunch a little after noon, returning to his employer's place of business in about a half or three-quarters of an hour. On the day in question he started home to lunch about 1:15 p. m., going along Pike street, doing so, as he said, 'because the chain is stretched across the street and the kids are in that street.' After lunch he returned along Union street and arrived at Summit avenue at about 1:45 p. m., when he ran against the chain which was then in its usual place across Union street along the west line of Summit avenue. So far the facts are undisputed. The plaintiff testified, in substance, that, while the chain was in place when he ran against it, there was then no sign there, and that no children were then at play in Union street, and that the sun shining in his face prevented him from seeing the chain. There was other testimony that the sign was then there and that the chain was visible, as usual, during play periods. Thus there appears to have been such showing that the question of negligence in the maintaining of the barrier and notice thereof and also the question of the plaintiff's contributory negligence were for the jury to decide.

We have noticed that the complaint charges the alleged negligence causing plaintiff's injury to have been committed jointly by the city and the school district; this manifestly with a view of holding both of them liable as ordinary joint tort-feasors. However, the evidence conclusively shows that the physical acts of closing the street and maintaining the barriers and notice thereof were the acts of the district alone. If there was any negligence in the doing or failing to do any of those physical acts incident to the safe closing of the street, it was primarily the negligence of the district. The city's...