Greene v. Seattle Athletic Club

• Decision Date: 12 October 1910
• Citation: 60 Wash. 300,111 P. 157
• Parties: GREENE v. SEATTLE ATHLETIC CLUB.
• Court: Washington Supreme Court

111 P. 157

60 Wash. 300

GREENE v. SEATTLE ATHLETIC CLUB.

Supreme Court of Washington

October 12, 1910

Department 1. Appeal from Superior Court, King County; John F. Main Judge.

Action by William W. Greene against the Seattle Athletic Club. From the judgment, plaintiff appeals. Affirmed.

E. B Palmer, Thomas M. Askren, and Milo A. Root, for appellant.

O. B. Thorgrimson, D. C. Conover, and Harold Preston, for respondent.

GOSE J.

The respondent, a Washington corporation, was organized, among other things, 'to give for profit and charge admission to athletic exhibitions, football games, and baseball games, regattas, and running and sailing races.' On the 6th day of May, 1909, it leased the armory in Seattle from the state for one evening only, and gave an exhibition charging an admission fee. The entertainment consisted chiefiy of foot races. The portion of the armory used consisted of the drill room, about 100 feet by 200 feet in dimensions, with a balcony about 14 feet in width extending around the interior walls at a height of about 12 feet from the floor. Three rows of seats arranged in amphitheater fashion extended around the building. Around the entire front of the balcony, about 20 inches from the first tier of seats, there was a railing about 3 feet in height, constructed of iron pipe about 2 inches in diameter, fastened to vertical bars 9 feet apart, made of like material but somewhat larger, each of which was attached to the floor of the balcony by an iron plate containing four screws, each 2 inches in length. There were no lateral braces, and the screws did not extend into the heavier material upon which the floor of the building rested. One of the features of the evening was a Marathon race. The final lap was closely contested, and the interest in the result became so great in the finish of the last lap that the spectators on the east side of the balcony, where the appellant was sitting, arose, pushed forward in great numbers, and leaned upon the railing so that they might get a better view, the contestants then being under the balcony, causing the railing to break its connections and precipitate the appellant and others to the floor below, and injuring the appellant. There were several races preceding the accident. The appellant testified that the spectators leaned upon the rail 'every time the contestants came underneath the gallery, several times' prior to the accident, and that the railing seemed 'perfectly safe,' and that it appeared to be solid and substantial. The expert testimony discloses that a careful inspection by a competent builder or architect would have disclosed the defective connection between the rail posts and the floor, but that it would not have been noticed by such experts from a casual examination. The following interrogatory propounded to the respondent, with the answer thereto, is the only evidence touching the question of an inspection: 'Q. Did the Seattle Athletic Club or its agents make any inspection of the Seattle Armory prior to May 6, 1909? A. It is impossible to answer interrogatory 4 by 'yes' or 'no.' The superintendent and physical director of the Seattle Athletic Club were in the Armory Building on the afternoon of the day on which the exhibition was given, and observed in a general way the arrangement of the room in which the exhibition was given. It would not, however, be correct to say that they made an inspection of it in the way of examining the details of its construction. They observed the railing around the gallery, and observed that it was very solid and substantial in appearance.' The only negligence claimed is that the posts or stanchions to which the railing was attached were not securely fastened. It is not claimed that the balcony was overcrowded. At the close of the appellant's evidence, a judgment of nonsuit was entered, from which the appeal is prosecuted.

The appellant contends that, when he purchased a ticket and entered the building, an implied contract arose between the parties which made it obligatory upon the respondent to furnish him a reasonably safe place in which to witness the exhibition. This is undoubtedly the general rule applicable to the owner of such a building, or a lessee for a considerable period of time. It is, however, limited in its application by another rule, equally well settled, that reasonable care only is exacted by the law. This is a relative question, depending upon the character of the business in which the party sought to be charged is engaged. Phillips v. Wisconsin Agricultural Society, 60 Wis. 401, 19 N.W. 377; Williams v. Park Association, 128 Iowa, 32, 102 N.W. 783, 1 L. R. A. (N. S.) 427, 111 Am. St. Rep. 184; Odell v. Solomon, 99 N.Y. 635, 1 N.E. 408; Thornton v. Agricultural Society, 97 Me. 108, 53 A. 979, 94 Am. St. Rep. 488; Currier v. Boston Music Hall Ass'n, 135 Mass. 414; Barrett v. Lake Ontario Beach Imp. Co., 174 N.Y. 310, 66 N.E. 968, 61 L. R. A. 829; 29 Cyc. 453; 1 Thompson on Negligence, §§ 994, 995; Beale, Innkeepers and Hotels, § 324; Graves v. B. & N.Y. Ry. Co., 76 N. J. Law, 362, 69 A. 971; Schofield v. Wood, 170 Mass. 415, 49 N.E. 636. The standard of due care is measured in all cases by the conduct of the average prudent man. The pivotal question in the case is: Did such standard require the respondent to have the building inspected by an architect or structural engineer, or other competent person?

The answer to this question requires a brief reference to the history of the construction of the armory. The armory was erected by the state, under the provisions of Laws 1907, p 83 et seq., c. 55; the sum of $130,000 being appropriated from the military fund for its construction. It required the Governor to appoint a board or commission of six members, comprised of the Adjutant General of the National Guard of Washington, the ranking officer of the active list of the National Guard stationed at Seattle, the State Board of Control, and the chairman of the board of county commissioners of King county, all of whom were ex officio members of the board. The members of the board were required to act as such until the completion of the armory and acceptance thereof by the state, and to give a bond to the state, to be approved by the Governor, in the sum of $5,000, conditioned for the faithful performance of the duties imposed upon them by the act. Section 6 of the act required the board 'to select the most desirable site, plan, and design, and to obtain proper architectural designs, plans and specifications and details, in conformity with such plan and design; to secure the erection and completion of such armory building, conforming faithfully to such plan and design.' Section 7 of the act provides that: 'All material contracted for shall be of the best quality and to the satisfaction of the board, and the directions, plans and specifications of the work executed and carried out by skilled and reputable architects, artists, mechanics and laborers, likewise to the satisfaction of the board.' Section 8 provides that: 'The architect chosen by each of these boards shall receive such compensation for his plan and design as the board shall deem reasonable. He shall be supervising architect of said building, and for all contracts for construction or material therefor. He shall see that all material furnished and work done shall be of the best quality, and all contracts with said board are faithfully performed by the parties so contracting with said board. He shall perform all other duties devolving upon him as such architect, and the supervising architect of said building, and may be removed at the pleasure of said board.' And that he should furnish a surety company bond to the state in the sum of $10,000, conditioned for the faithful performance of his duties, by said architect, his assistants, and his subordinates. Section 10 makes the Attorney General the legal adviser of the board. Section 11 provides that the commander in chief (the Governor) shall make such rules and...