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

• Decision Date: 10 May 1918
• Docket Number: 13453.
• Court: Washington Supreme Court
• Parties: KELLEY v. SCHOOL DIST. NO. 71 OF KING COUNTY.

173 P. 333

102 Wash. 343

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

No. 13453.

Supreme Court of Washington, En Banc.

May 10, 1918

Appeal from Superior Court, King County; King Dykeman, Judge.

Action by Lauretta B. Kelley against School District No. 71 of King County. Judgment for plaintiff, and defendant appeals. Affirmed.

Alfred H. Lundin, Robert H. Evans, and S. M. Brackett, all of Seattle, for appellant.

Brightman & Tennant, of Seattle, for respondent.

FULLERTON J.

The respondent, a child nine years of age, while attending a public school at Kirkland conducted by the appellant district, was injured by the breaking of a swing maintained by the district as a part of the playground equipment on the school grounds. On a trial to a jury she recovered a verdict of $750. From the judgment entered thereon the school district prosecutes this appeal.

The first contention of the appellant is that a school district is not liable for an in jury to a pupil of the school caused by the negligent maintenance of apparatus on the school grounds, although used and installed to be used by the pupils of the school for exercise and play. It is conceded that this court has held to the contrary in the cases of Redfield v. School District No. 3, 48 Wash. 85, 92 P. 770, and Howard v. Tacoma School District No. 10, 88 Wash 167, 152 P. 1004, Ann. Cas. 1917D, 792, but it is said that these cases have for their foundation a section of the Code creating a liability (Rem. Code, § 951), and that the particular section was repealed, in so far as the liability of school districts is concerned, by a later enactment of the Legislature. The act thought to work the repeal is chapter 97 of the Laws of 1909; the act, as its title recites 'establishing, providing for the maintenance of and relating to, a general and uniform school system for the state of Washington.' But a perusal of the act shows that there was no direct repeal of the section cited, and if there is a repeal at all it is a repeal by implication. The act is long, and it would be unprofitable to attempt to epitomize its provisions here. Its examination will show that it makes reference in a certain section to the school district's contractual obligations, and provides for the payment of judgments against it entered upon such obligations. But it nowhere makes reference to liabilities for torts, much less does it say that no liability shall attach for the commission of a tort. When it is remembered that repeals by implication are not favored, we cannot think there is here room for holding an implied repeal merely because in this particular section no mention is made of torts.

Since the happening of this accident and the recovery thereon in the court below, the Legislature has provided that no recovery shall be had against a school district for accidents such as the one now before us; the act taking effect while the appeal was pending in this court. See Laws 1917, p. 332. By a supplemental brief it is urged that this act is a bar to any recovery, and requires a reversal and dismissal. But the case is in its situation parallel to that of Bruenn v North Yakima School District, 172 P. 569, and on the authority of that case is still a liability against the district.

On the merits of the controversy, the appellant contends there was no proof of negligence on its part in the maintenance of the swing which broke and caused the injury, but we think the evidence ample in this respect for the jury. In fastening the swing to its supports an iron ring was used, which passed through the eye of a staple. The use of the swing caused the ring to move in the staple eye, creating a friction which gradually wore it down at the point of contact. It was the giving way of this ring at the point of contact that caused the accident. The objection to the proof is that there was no evidence of want of inspection; no evidence that it had been in a worn and defective condition for any considerable period of time, or that inspection would have disclosed its dangerous condition. But the broken ring was before the jury, and its...