Kincaid v. Walla Walla Valley Traction Co.

• Decision Date: 14 February 1910
• Citation: 106 P. 918,57 Wash. 334
• Parties: KINCAID v. WALLA WALLA VALLEY TRACTION CO.
• Court: Washington Supreme Court

106 P. 918

57 Wash. 334

KINCAID v. WALLA WALLA VALLEY TRACTION CO.

Supreme Court of Washington

February 14, 1910

Department 1. Appeal from Superior Court, Walla Walla County; Thos. H Brents, Judge.

Action by W. H. Kincaid against the Walla Walla Valley Traction Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Cary M Rader and Elihu F. Barker, for appellant.

Sharpstein & Sharpstein, for respondent.

GOSE J.

This is a suit to recover damages for personal injuries sustained by the plaintiff on September 26, 1908. There was a verdict and judgment in his favor for the sum of $5,500. The defendant has appealed.

The complaint in substance states that, at the time of the injury, the appellant was engaged in the operation of a street car line upon Whitman and other streets in the city of Walla Walla; that its right to construct its tracks and to operate its road was granted by an ordinance of the city which provides that on unpaved streets it shall lay planks outside of the rails one foot in width, and flush with and against them, and that inside of the rails it shall lay planks of the same width properly chamfered to fit them; that Whitman street is unpaved, and that the appellant had not placed any planks or other firm substance along the rails, but had placed soft dirt adjacent to them; that the rails extended about six inches above the ties upon which they were laid; that the respondent on the day he received the injury was driving a team attached to a wagon, on which there was a tank containing water, on Whitman street, immediately east of its intersection with Palouse street; that he undertook to drive across the steel rail; that the wheels of the wagon caught against it, sank into the soft dirt, slid, and broke the axle of the wagon, throwing the respondent to the ground; that the tank of water rolled off the wagon onto the respondent, breaking his leg and inflicting permanent injuries.

The appellant moved to strike the following from the complaint: 'That defendant had negligently failed to place adjacent to said rails any plank or paving or other hard or firm substance on either side of either of the two parallel rails, constituting part of said system, at said place, and had negligently placed soft, yielding dirt adjacent to said rails, so that the wheels of plaintiff's wagon sank into said dirt; that such planks, placed as required by the ordinances hereinafter referred to, would have rendered said rails and street safe for public travel, and the want thereof, or of some other hard substance in lieu thereof, rendered the same unsafe, all of which acts of negligence were unknown to plaintiff, and that by reason thereof * * *. Which ordinances contained a provision to the effect that on unpaved streets the rails should weigh not less than 56 pounds to the yard in length, and that there should be a plank one foot in width, to be laid flush with and against the rail, and on the inside of each rail, there shall be a plank one foot in width, laid parallel with and chamfered so as to fit the rail; that Whitman street is an unpaved street; that the defendant failed and neglected to place any of said planks in position, or to lay the same at all, or to use any other substitute therefor, or in any other manner to render said track safe for teams to cross the same.' The motion being overruled, appellant demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer being overruled, it answered, denying any negligence on its part, and alleging affirmatively (1) that the respondent was guilty of contributory negligence; and (2) that the ordinance referred to in the complaint provides that the planking may be waived by agreement between the city and the appellant, and that at the time the line was constructed the duty to plank was so waived. The reply put the new matter in issue, except it admitted that the ordinance contained a provision that the planking may be waived by an agreement between the city and the appellant. It was admitted that the appellant was operating a street car line in the city under an ordinance containing the provisions alleged in the complaint. It is also admitted that the track was planked on Whitman street at its intersection with Palouse street.

It is first urged that the court committed error in refusing to strike the portions of the complaint to which the motion was directed, and in overruling the demurrer. We will consider these assignments together. The argument is made that the ordinance is in the nature of a police regulation for the benefit of the city, and not for the benefit of the people who travel the streets, and that the appellant is not liable to an individual for an injury resulting from its noncompliance with the conditions of the ordinance. In support of this contention it cites Fielders v. North Jersey Street Ry. Co., 68 N. J. Law, 343, 53 A. 404, 54 A. 822, 59 L. R. A. 455, 96 Am. St. Rep. 552, Leary v. Boston El. Ry. Co., 180 Mass. 203, 62 N.E. 1, and Nellis on Street Surface Railroads, 57. In the Fielders Case, which was a suit for damages for personal injuries, the defect which caused the injury was a hole in the street pavement between the rails of the track. Upon the facts in the case it was held that the company was not liable to an individual for an injury sustained under an ordinance requiring all street railway companies to pave and keep in repair the spaces between the rails of the track and for one foot outside of the outer track, and that the ordinance was invalid as an assumption of the power to tax, and not within the police power. As showing that it is not authority in the case at bar, we make the following excerpts from the opinion: 'There is nothing in the case to show that the pavement in question had been laid or maintained by the defendant, or that the defect resulted from any act of commission on the defendant's part. Nor is there anything to connect the defect with the defendant's rails or sleepers, or to show that anything done or omitted in the construction, maintenance, or operation of the railway produced the defect. The location of the hole between the rails is a mere circumstance, without causative significance. And the only default attributable to the defendant is the failure to repair. It is familiar law that a railway company, having the right to lay tracks in a public street, is bound, by the general principles of the common law, and without either a specific statute or ordinance or a contractual obligation, to lay its tracks in a proper manner, and to keep them in a proper state of repair. * * * But the present case is devoid of evidence to show that any liability for the repair or maintenance of the street pavement was imposed upon the defendant as a condition of its right to exercise its franchise, or that the defendant, by any contract, has undertaken such a duty.' In the Leary Case it is conceded that, where the statute granting a charter to the street railway company provides that the company shall maintain and keep in repair the portion of the street occupied by its tracks, the company is liable to the traveler who sustains an injury through its failure to comply with such provision. Nellis, at page 54, states that the rule is that the authority granting the franchise may determine and dictate in what manner and under what conditions the franchise may be enjoyed.

It will be observed that these cases are not authority for the contention that a street railway company can construct its track under a franchise imposing conditions upon which the privilege may be enjoyed, and escape liability to one who has been injured by its noncompliance with the conditions. As the learned trial court remarked, the granting of the franchise to appellant imposed upon it the duty of placing the track in a reasonably safe condition. Neither the municipality nor its creatures can place an obstruction in a street, which causes an injury, and be exempt from liability. This view is supported by the following cases: Reynolds v. Great Northern R. Co., 40 Wash. 163, 82 P. 161, 111 Am. St. Rep. 883; Gray v. Washington Water Power Co., 30 Wash. 665, 71 P. 206; McMahon v. Railroad Company, 75 N.Y. 231. In the Reynolds Case it was held that a shipper could recover damages to live stock caused by a failure upon the part of the carrier to unload them after confinement for a period of 28 consecutive hours, in violation of section 4386, U.S. Rev. St. (U. S. Comp. St. 1901, p. 2995). In the Gray Case the street car company was held liable for an injury resulting from its failure to maintain its rails flush with the street, as required by an ordinance of the city. In the McMahon Case it was held that, the railroad company having contracted with the municipality to keep the streets safe for travel, and having failed to do so, one who was injured through its default had a right of action against it.

Moreover independent of the obligation arising from the ordinance, the appellant could not so obstruct the street as to render it dangerous to travel, and be exempt from liability to a person injured thereby; and the allegations in the complaint that the rails extended about six inches above the ties upon which they were placed, that they were unprotected except by soft and yielding dirt, which the appellant had placed about them, and which gave the track the appearance of being safe when it was in fact dangerous, and that the...