James v. Burchett

• Decision Date: 14 October 1942
• Docket Number: 28711.
• Citation: 15 Wn.2d 119,129 P.2d 790
• Parties: JAMES v. BURCHETT et al.
• Court: Washington Supreme Court

129 P.2d 790

15 Wn.2d 119

JAMES v. BURCHETT et al.

No. 28711.

Supreme Court of Washington, En Banc.

October 14, 1942

Action by Marie S. James against Glenn A. Burchett and Earl F Kaufman, partners doing business as Burchett-Kaufman Nash Company, to recover for injuries sustained by the plaintiff in a fall on a sidewalk in front of defendants' place of business. From a judgment in favor of plaintiff, the defendants appeal.

Judgment affirmed.

STEINERT J., ROBINSON, C.J., and BEALS, J., dissenting.

Appeal from Superior Court, Spokane County; Ralph E. Foley, judge.

Edge Keith & dePender, Leo N. Cashatt, and T. J. Fitzpatrick, all of Spokane, for appellants.

Williams Williams & Cooney, of Spokane, for respondent.

SIMPSON Justice.

Action in this case was instituted by plaintiff to recover damages from defendants for injuries caused, as was alleged, by reason of the negligence of defendants in causing stones to be deposited and remain upon a sidewalk, in front of their place of business, upon which plaintiff stepped causing her to fall to the sidewalk.

The case, tried to the court, resulted in a judgment favorable to plaintiff. Defendants have appealed.

The assignments of error are in holding that there was an actionable occurrence, in deciding that defendants had notice of the existence of pebbles on the sidewalk, in holding that defendants were responsible for their existence, in holding that plaintiff was not guilty of contributory negligence, and in holding that the judgment was supported by a preponderance of the evidence.

The facts as disclosed by the record may be summarized as follows: Appellants operated a used-car business on a lot on the south side of First avenue in the city of Spokane. The lot is approximately forty feet wide and one hundred twenty feet long. At the time of the accident, between twenty and thirty feet of the south end of the lot were used by the Inland Truck & Diesel Company for storage of their trucks. The lot had been used by several automobile concerns as a used-car lot since 1928. The soil Before being put in condition for use was 'more or less gravelly.' The surface of the lot Before being used for a used-car lot was covered by what was described as 'torpedo gravel,' which measured from one-quarter to one-half inch in size. Near the entrance of the driveway the graved was hard packed. At times larger native rocks worked their way to the surface. Four rocks, the largest of which was about the size of a large walnut, were gathered from the lot during the course of the trial and introduced in evidence. Three of the rocks were lying loose on top and the other was found partially imbedded in the surface of the lot. On account of travel in and out of the lot small gravel worked out onto the sidewalk. Men employed on the lot swept the driveway when needed and washed it once or twice a week to keep it clean. On the day of the accident it had not been cleaned in either way.

In about the center of the end of the lot the sidewalk had been beveled so as to admit the passage of cars. The beveling was about six feet long and extended back to about the middle of the sidewalk. The balance of the walk was of normal structure.

About twenty-five used cars were kept on the lot by appellants, and these together with the trucks owned by the Inland Truck & Diesel Company were driven in and out of the lot daily.

One August afternoon, respondent, who lived two blocks east, passed over the sidewalk entrance on her way to the city library. She testified that as she walked along the sidewalk and turned to avoid the slope in the middle of the walk and had taken about two steps, that 'when I stepped I happened to put my right heel right on the rock and my ankle turned and I was thrown forward toward my left side.'

She further testified that she did not see the rock until after she had fallen, when she noticed that it was about 'as large as a walnut'; that it was irregular in contour and that she noticed but two other rocks upon the sidewalk.

The only eyewitness to respondent's accident testified that she saw some crushed pebbles on the sidewalk varying in size 'from about as big as my thumb nail down to small pebbles.'

It is the theory of respondent that the circumstantial evidence present in this case proved that the gravel was brought from appellants' lot onto the sidewalk by the action of the car wheels when the cars were driven over the sidewalk from the car lot.

Circumstantial evidence may be used to prove any fact, including negligence. Sandanger v. Carlisle Packing Co., 112 Wash. 480, 192 P. 1005; Collais v. Buck & Bowers Oil Co., 175 Wash. 263, 27 P.2d 118; McFarland v. Commercial Boiler Works, 10 Wash.2d 81, 116 P.2d 288.

It is insisted that respondent failed to establish any actionable negligence on the part of appellant.

Preliminary to a discussion of the merits, we deem it proper to advert to some general rules relative to the rights of pedestrians and the duties of abutting property owners who use sidewalks for their particular purposes.

Sidewalks are constructed for the primary use of pedestrians, though they may be used by abutting property owners for special purposes.

The rule laid down in Tolman & Co. v. City of Chicago, 240 Ill. 268, 88 N.E. 488, 489, 24 L.R.A.,N.S., 97, 16 Ann.Cas. 142, is as follows:

'The public has a paramount right to the use of the street in all its parts. That right is the right of all persons to pass over it freely and without impediment whenever they have occasion to do so. The right is not, however, an absolute right in every person at all times. It is subject to such incidental and temporary or partial obstruction as manifest necessity may require. The use of the street by one person or company of persons passing along it interposes an obstruction to any other person or persons occupying the same part of the street at the same time for the same purpose. * * *

"The owners of lots bordering upon streets or ways have the right to make all proper and reasonable use of such part of the street for the convenience of their lots not inconsistent with the paramount right of the public to the use of the street in all its parts.' McCormick v. South Park Com'rs, 150 Ill. 516, 37 N.E. 1075.

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'The extent of the right thus to interfere with the public's free and uninterrupted enjoyment of the use of the sidewalk depends upon the necessity of the case so far as the individual is concerned and the reasonableness of the use against the public. It is said in Flynn v. Taylor, 127 N.Y. 596, 28 N.E. 418, 14 L.R.A. 556: '* * * The foundation upon which the exception seems to rest is that it is better for the public to suffer a slight inconvenience than for the adjacent owner to sustain a serious loss. * * *''

The Maryland Court of Appeals in State v. Emerson & Morgan Coal Co., Inc., 150 Md. 429, 133 A. 601, 605, states the rule:

'Under the general rule the right of the public to free an unobstructed passageway over every part of it was paramount to all other rights, except such as are reasonably necessary to effect the purposes for which the street exists. Those purposes were twofold; first, to afford a safe and convenient way for the passage of the general public, and, second, to afford to persons abutting thereon ingress and egress to and from their properties. The right of ingress and egress includes necessarily the privilege of receiving such supplies and materials including fuel as are necessary or convenient for the comfortable enjoyment of the abutting properties, and as incident thereto the privilege of temporarily obstructing the street and sidewalk for that purpose. But the right to obstruct the highway, even for such purpose, is limited and subordinate to the paramount right of the public to free and safe passage thereover. And if the obstruction is unnecessary, or if it subjects persons in the lawful use of the street to unnecessary dangers, or if it is maintained for an unreasonable length of time, it cannot be justified under the exceptions to which we have referred.'

See, also, Granucci v. Claasen, 204 Cal. 509, 269 P. 437, 59 A.L.R. 435.

The decisions of this court in Lund v. St. Paul, Minneapolis & Manitoba Ry. Co., 31 Wash. 286, 71 P. 1032, 61 L.R.A. 506, 96 Am.St.Rep. 906, and Gabrielsen v. Seattle, 150 Wash. 157, 272 P. 723, 63 A.L.R. 200, lend support to the views expressed in the foregoing cases.

Where a sidewalk is used by one, in control of abutting property, as a driveway for vehicles, the special use, though lawful, carries with it the duty to use reasonable care that the use does not create conditions rendering it unsafe for the passing thereon of pedestrians. 25 Am.Jur. 657, Highways, §§ 364, 365; Mitchell v. Thomas, 91 Mont. 370, 8 P.2d 639; Cobb v. Salt River Valley Water Users' Ass'n, 57 Ariz. 451, 114 P.2d 904. In this connection, see Lewis v. Spokane, 124 Wash. 684, 215 P. 36, and cases cited therein.

The problem presented in Collais v. Buck & Bowers Oil Co., supra is similar to the one which we have Before us. In that case it appeared that property abutting upon a sidewalk was operated by an automobile service station. Upon the lot a pit was used into which oil from automobile crank cases was drained. The evidence showed that oil from the pit was conveyed through a pipe into a barrel situated near the sidewalk. The circumstantial evidence showed that as the oil was taken from the barrel it was spilled upon the sidewalk. This court held that the evidence was sufficient to establish prima facie that the oil came from the premises of the operators of the filling station. In passing upon the facts presented in that case, this court stated [175 Wash. 263, 27 P.2d 121]: 'True, the proof that the...