Gregg v. King County

• Decision Date: 26 June 1914
• Docket Number: 11603.
• Citation: 141 P. 340,80 Wash. 196
• Court: Washington Supreme Court
• Parties: GREGG v. KING COUNTY.

141 P. 340

80 Wash. 196

GREGG v. KING COUNTY.

No. 11603.

Supreme Court of Washington

June 26, 1914

Department 1. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by Alton Louis Gregg, a minor, by John L. Gregg, his guardian ad litem, against the county of King. From a judgment for plaintiff, defendant appeals. Affirmed.

A county maintaining a dock under Rem. & Bal.Code, § 8114, for public use, must exercise reasonable care for the safety of the public and all persons having occasion to use it.

John F Murphy and Robert H. Evans, both of Seattle, for appellant.

B. J Shipman and Dudley G. Wooten, both of Seattle, for respondent.

ELLIS J.

This action was brought to recover damages for injuries sustained by the plaintiff, a boy between six and seven years old, through the alleged negligence of the defendant in the construction and maintenance of its dock at Juanita on the eastern shore of Lake Washington.

The facts are practically undisputed. The dock in question was owned and operated by the county for the use of the public in connection with boats touching at Juanita. It was constructed on wooden piles driven into the bed of the lake. The floor was of planking, and was bounded on its outer edge by a line of beams or 'stringers,' rising about ten inches above the floor. These, at the southerly side of the dock, where the accident occurred, were flush with the edge of the dock. At that side were driven piles about a foot in diameter called 'fender piles,' the purpose of which was to receive the impact of boats and to protect the wharf. The pile causing the injury was driven into the bottom of the lake eight or ten feet, and rose alongside the dock to a height of about a foot and a half above the stringer. It was not bolted to the dock, and there was a space of four or five inches between it and the dock. A few feet east of this fender pile was a small warehouse for storing freight, and a few feet west was a slip or incline for the convenience of persons going to and from the boats. A few feet north of the warehouse was a small confectionery store. Contiguous to the wharf on the shore side, and constructed upon a trestle on a level a little above the floor of the wharf, ran the road from Juanita to Kirkland. A line of boats ran to this dock regularly, making four or five landings a day to receive and discharge freight and passengers. The dock was regularly used by the public in meeting, embarking upon, and leaving boats. Among the persons thus using the dock were the older brother and sister of the plaintiff, one of whom was sent there daily by their parents to meet the boat arriving at 5 o'clock in the afternoon and receive the Seattle paper. On August 9, 1912, the plaintiff's older brother, aged nine, accompanied by the plaintiff, visited the dock for this purpose, arriving a few minutes in advance of the boat. They seated themselves in the narrow space between the warehouse and the slip, and on the stringer running along the edge of the dock; their feet resting upon the floor. The plaintiff was sitting behind the fender pile above mentioned, his right arm around the pile, and his left arm hanging down between the pile and the stringer upon which he was seated. He remained in this position, watching the incoming boat, until the vessel struck the fender pile, driving it against the dock, and mashing his left hand between the pile and the stringer. The hand was crushed so that it was necessary to amputate the little finger, the skin from the palm of the hand and on the forearm was badly lacerated, and the whole hand was severely bruised. After the arm was healed, a large scar remained, and the hand was stiff and lacked the power of gripping. Physicians who examined the boy testified that the injured hand does not perform its normal functions, that it is doubtful whether or not the hand will ever be as strong as a normal hand, and that the scar on the arm will be permanent. The plaintiff resided with his parents over a quarter of a mile from the dock and had been repeatedly warned by his parents not to go upon or play upon the dock. It is undisputed that, if the fender pile in question had been bolted to the dock, this accident would not have happened, and it appears that many of the piles about this dock were bolted at the time of the accident. There was some dispute as to whether a bolted pile would be as adequate a protection to the dock as a loose one, but the county inspector of docks and bridges, a witness for the defendant, testified that, about four years before the trial, the county engineer's office had adopted the plan of bolting the fender piles to the county docks in order to keep them in place. Another witness, a structural engineer, who had had charge of the construction of bridges and docks for King county during the year 1912, and under whose direction the dock here in question had been repaired in May and June of that year, testified that he had constructed and repaired 75 or 80 docks, and that, according to the approved and safe method of construction, a fender pile such as that which caused the injury should be bolted to the dock, and that a pile not so bolted would be dangerous.

At the close of the plaintiff's case in chief, the defendant moved for a nonsuit, which was denied. The jury returned a verdict upon all the evidence and the court's instructions, for the sum of $3,202 and costs. The defendant appealed.

The appellant assigns as error: (1) The overruling of the motion for a nonsuit; (2) the giving of certain instructions and the refusal to give certain requested instructions; (3) the refusal of a new trial because of these things and because of excessive verdict.

1. The appellant claims that its motion for a nonsuit should have been granted because no actionable negligence on its part was shown. It is argued that the function of a given structure controls the plan of construction; that the wharf here in question was built only to accommodate travel and traffic on the lake; that its construction was reasonably safe for that purpose; that it was not intended as a lounging place or playground for trespassing children; and that the fact that it was unsafe for that purpose was no evidence of negligence, since the presence of children on the dock and an injury such as occurred could not have been anticipated. The vice of this argument consists in the initial assumption that the wharf, as constructed, was, as a matter of law, reasonably safe for all things connected with traffic and travel. Let us suppose that this child had gone onto the wharf with his elder brother or, for that matter, with his parents, for the purpose of taking passage upon the boat, and, while waiting alongside the slip for the boat to make a landing, the child had been injured just as he was injured. Eliminating, for the present, the question of contributory negligence, it is clear that, under the evidence, the question of the appellant's negligence in leaving the fender pile loose and insecure, contrary to its own plan of construction adopted three or four years previously, would have been a question for the jury. The question of primary negligence, like that of contributory negligence, is always a question of fact for the jury and not a question of law for the court, whenever the minds of reasonable men might differ as to its existence. Richmond v. Tacoma Railway & Power Co., 67 Wash. 444, 122 P. 351; 1 Thompson on Negligence (2d Ed.) § 425.

The second phase of this argument is also unsound in assuming that, as a matter of law, the child who was injured was a trespasser not using the dock for, or in connection with, any purpose for which it was intended. The argument overlooks the fact that this dock was a public dock, intended for the use of all members of the public, children as well as adults. While we have held that a public dock is not a highway in such sense as to extend the right of eminent domain conferred by statute for the acquiring of rights of way for highways to the acquiring of dock sites, such statutes being strictly construed, and not extended by mere analogy ( State ex rel. Wauconda Investment Co. v. Superior Court, 68 Wash. 660, 124 P. 127, Ann. Cas. 1913E, 1076), it is none the less true that a public dock is a public place, maintained by the county under statutory authority (Rem. & Bal. Code, § 8114) for the public use and convenience. There is therefore the same duty upon the county to exercise reasonable care for the safety of the public and all persons having occasion to use such docks as is found in case of public highways, since both are, broadly speaking, public ways. Oceanic Steam Navigation Co. v. Campania Transatlantica Espanola, 134 N.Y. 461, 31 N.E. 987, 30 Am. St. Rep. 685; 2 Shearman & Redfield on Negligence (6th Ed.) § 333.

As further sustaining this view, the statute above referred to authorizes the construction and maintenance of such wharves only at the termination of a county road at or near the shore of nevigable waters or water courses, thus recognizing a use of such wharves in connection with, and impliedly coextensive with the use of such roads. It would seem therefore that the child here in question had the same right upon this dock that it would have had upon the trestle forming the road immediately contiguous thereto. Unquestionably, had this child been injured in passing along the trestle, which constituted the public road at this point, by reason of a structural defect in the trestle, he would have had the right to recover from the county for such injury. Eskildsen v Seattle, 29 Wash. 583, 70 P. 64. Moreover, even assuming that a child six years of age is capable of trespass in the strict legal sense--a thing upon which we have more than once...