Holt v. School Dist. No. 71 of King County

• Decision Date: 11 May 1918
• Docket Number: 14307.
• Court: Washington Supreme Court
• Parties: HOLT v. SCHOOL DIST. NO. 71 OF KING COUNTY.

173 P. 335

102 Wash. 442

HOLT v. SCHOOL DIST. NO. 71 OF KING COUNTY.

No. 14307.

Supreme Court of Washington, En Banc.

May 11, 1918

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by Vernice Holt, by Cecil Holt, her guardian ad litem against School District No. 71 of King County. Judgment for plaintiff, and defendant appeals. Affirmed.

Alfred H. Lundin, Edwin C. Ewing, and S. M Brackett, all of Seattle, for appellant.

Arthur H. Hutchinson and James B. Murphy, both of Seattle, for respondent.

PARKER J.

The plaintiff Vernice Holt, by her guardian ad litem, seeks recovery of damages for personal injuries claimed to have been suffered by her from the negligent maintenance of playground apparatus by the defendant school district. Trial in the superior court for King county, sitting with a jury resulted in verdict and judgment in favor of the plaintiff from which the defendant has appealed to this court.

At the time respondent was injured she was nine years old. She was then attending the school of appellant. In its schoolhouse yard appellant then maintained a playground apparatus which, in so far as our present inquiry is concerned, may be described as follows: The main frame of the structure consisted of two upright posts 6X6, feet set in the ground, with another piece 6X6 resting horizontally on top of and flush with the sides of the posts. The top of the horizontal piece was approximately 14 feet from the ground. Running up the side of one of the posts was a perpendicular ladder directly under the top piece, with rungs made of iron pipes, approximately 1 1/4 inches in diameter and 12 inches apart. The rungs were inserted, one end in the post and one end in a 2X4 piece which was parallel with and 18 inches from the post, reaching from the ground to the under side of the top piece. The rungs were set in from the front of the 6X6 posts and the 2X4 about 1 1/2 inches, so that one climbing up the ladder would find the top piece projecting over the rungs about that distance. Attached to the side of the main frame, back of and opposite the ladder there were two parallel iron pipes approximately 3 inches in diameter and 17 inches apart, running from the top to the ground on an incline. There were bent iron pipes forming sort of banisters projecting above the top in line with the sides of the ladder, to which one could hold while sitting or standing on the top above the ladder. The use intended to be made, and which was made, of this apparatus by the children, was in climbing up the ladder, over the top between the banisters, and sliding down the iron pipes, resting their legs and arms on the pipes. This apparatus was freely accessible to respondent and other children of her age, and the jury might well conclude was intended for their use as well as for the use of older children. On the morning in question, a short time before the commencement of the school session for the day, respondent, while unattended by any one other than her young playmates, climbed up the ladder with a view to sliding down the inclined iron pipes on the opposite side. When at or near the top she fell to the ground, fracturing her skull and being otherwise seriously injured, the exact nature and extent of which injuries need not be noticed here. The testimony is in conflict as to whether when she fell she had reached the top of the ladder, as to whether she was endeavoring to reach and climb over the top piece, and as to whether she had climbed over the top and was starting to slide down the inclined pipes; but that she fell from a height of at least 10 or 12 feet seems certain. The negligence charged against appellant is, in substance, that the apparatus was inherently dangerous to children of the age of respondent, and that appellant negligently maintained the apparatus on its school grounds accessible to respondent and children of similar tender years and experience, and also that it was negligent in permitting respondent to use the apparatus.

The first and principal contention here made in appellant's behalf is that chapter 92, p. 332, Laws 1917, now renders appellant free from all liability to respondent regardless of the time she was injured and regardless of when the judgment in this action was rendered in her favor in the superior court. She was injured, as above described, on March 31, 1916. Judgment was rendered in her favor awarding her damages against appellant in this case on January 12, 1917. The act of 1917 relied upon by appellant as absolving it from liability to respondent was not passed until March, 1917. Soon thereafter this appeal was taken from the judgment of the superior court. Our recent decision in Bruenn v. North Yakima School District No. 7, 172 P. 569, wherein this exact question was reviewed at length, is decisive as against this contention at length, is decisive deem it unnecessary to again review the question here.

It is contended in appellant's behalf that the court erred to its prejudice in admitting in evidence certain opinion testimony of two witnesses who were familiar with playground apparatus generally, and especially of apparatus of this nature. The argument is directed particularly to expressions of opinion by the witnesses as to why this particular ladder was dangerous for small children to play upon. They testified in substance that in climbing a perpendicular ladder the center of gravity of the child would fall outside the foot of the ladder, rendering the danger greater than when climbing an inclined ladder; and that flat steps on a inclined ladder were safer for a child than round rungs. Counsel for appellant invoke the general rule that opinion testimony stating a conclusion of the witness upon a question which is for the jury to decide is not admissible, except in particular instances where the witness possesses special knowledge of the subject-matter about which he is testifying and such subject-matter is one of special knowledge as distinguished from common knowledge. It is argued that the question of the danger in climbing up a perpendicular ladder, as affected by the falling of the center of gravity of the climber outside of the foot of the ladder, is one of such common knowledge that a witness should not be permitted to express an opinion that a child in such a situation would be in greater danger that if it were climbing up an inclined ladder. The same argument is made in substance with reference to the opinions of the witnesses touching the comparative danger to a child in climbing an inclined ladder with flat steps instead of round rungs. We may concede that the admission of this testimony was error, measured by strict rules, but its very nature, we think, renders it without prejudice to the appellant. The conclusions testified to in the two particulars mentioned are so self-evident that the jury must have viewed them exactly as the witnesses did, regardless of the witnesses' opinions. Every juror knows that in climbing a perpendicular ladder the center of gravity of the climber will fall outside of the foot of the ladder, and that the losing of hand or foot hold upon such a ladder is attended with greater danger of falling than when the ladder is inclined, placing the lower part of it under the climber. The witnesses' opinions touching the danger to a child climbing flat steps on an incline as compared with one climbing on round rungs are not materially different in principle, in so far as the conclusion a juror would necessarily reach is concerned. These expressions of opinion by the witnesses were in principle much as if the witnesses had given their opinions as to the result of a simple computation of arithmetic, such as that two and two make four, or had stated any other conclusion from known or assumed facts, which the jury must themselves have necessarily reached regardless of the witnesses' opinions. There is an abundance of authorities sustaining the view that, while such...