Krings v. City of Bremerton

• Decision Date: 24 January 1945
• Docket Number: 29444.
• Citation: 155 P.2d 493,22 Wn.2d 220
• Parties: KRINGS v. CITY OF BREMERTON.
• Court: Washington Supreme Court

155 P.2d 493

22 Wn.2d 220

KRINGS v. CITY OF BREMERTON.

No. 29444.

Supreme Court of Washington, En Banc.

January 24, 1945

Action by William A. Krings against City of Bremerton to recover for injuries sustained by plaintiff in a collision between his automobile and a city garbage truck. From a judgment of dismissal, plaintiff appeals.

Affirmed.

MALLERY and BLAKE, JJ. dissenting.

Appeal from Superior Court, Kitsap County; H. G. Sutton, judge.

Peyser & Bailey and Roberta Kaiser, all of Seattle, for appellant.

Henry Elliott, of Seattle, and James W. Bryan, Jr., and John C Merkel both of Bremerton, for respondent.

BEALS Chief Justice.

William A. Krings, as plaintiff, instituted this action against the city of Bremerton, a municipal corporation, for the purpose of recovering damages suffered by plaintiff as the result of a collision between plaintiff's automobile, which he was driving, and a garbage truck owned and operated by the city. As a result of the accident, plaintiff suffered severe physical injuries, and his automobile was severely damaged for all of which he sought recovery in this action.

On the afternoon of September 17, 1943, plaintiff was driving in a general northerly direction away from the city of Bremerton on a four-lane highway. He was driving at a reasonable speed and in his proper traffic lane. Defendant's eight-ton garbage truck, empty, was approaching Bremerton in the charge of its regular driver, James Critser. Sometime prior to the accident, Critser had, however, turned the wheel over to one Norman Brennan, a youth nineteen years of age acting as Critser's assistant. Brennan had no driver's license, and was learning to drive under Critser's supervision. From the evidence it appears that the truck was being driven at an excessive speed. Upon rounding a curve on the highway and thereafter descending a slight grade, Brennan attempted to pass another car. Changing his mind, he attempted to check the speed of the truck, and apparently lost control, the truck striking the car which Brennan attempted to pass, and continuing on in an irregular course until it struck plaintiff's car, which plaintiff had driven off the highway in an attempt to avoid the apparent dauger. Plaintiff suffered serious injuries, and his car was badly damaged.

It stands admitted that defendant was the owner and operator of the garbage truck which collided with plaintiff's car, and that at the time of the accident the truck was being used and operated in the course of garbage collection and disposal.

The action was tried to the court sitting without a jury, and resulted in the entry of findings of fact and conclusions of law in defendant's favor, followed by a judgment dismissing the action, from which plaintiff has appealed.

Appellant assigns error upon the entry of four findings of fact; upon the court's refusal to find that in the operation of this garbage truck respondent had created, permitted and maintained a nuisance; upon the court's refusal to hold that upon the evidence respondent was estopped to urge in defense of appellant's action that respondent was not liable to appellant because at the time of the action respondent was using the truck in the performance of a governmental function; and upon the entry of judgment dismissing appellant's action.

The trial court found, and the findings are amply supported by the evidence, that in driving respondent's truck Brennan was negligent, and that the collision was proximately caused by such negligence. The court also found that at the time of the accident, Critser and Brennan were employees of respondent, and were then using respondent's truck in the collection and disposal of city garbage, which constituted a governmental function of respondent. The court also found, and this finding is attacked by appellant as incorrect, that neither the garbage truck nor its operation by respondent constituted a nuisance; that the truck was one proper to be used in the collection and disposal of garbage; and that when driven with ordinary care and prudence, the truck was not dangerous to the public.

Appellant contends that it should be held that the collection and disposal of garbage by a city is not a governmental function. The removal of garbage by such a city as respondent is authorized by Rem.Rev.Stat. § 8972.

In the recent case of Hagerman v. Seattle, 189 Wash. 694, 66 P.2d 1152, 110 A.L.R. 1110, this court sitting en banc held that in operating under sitting en banc held that in health department a truck used in connection with city hospital service, the city was engaging in a governmental function.

Following the case cited and in accordance with the weight of authority, we hold that in maintaining and operating a garbage collection and disposal system, respondent was exercising a governmental function.

In discussing the question of liability of municipal corporations for the negligence of its employees while performing governmental functions, this court said:

'In passing, it may be noted that in at least the following instances, the doctrine of immunity does not apply: * * * (2) where damage or injury has been occasioned through the establishment, maintenance, or permission of a nuisance.'

Appellant vigorously argues that the case at bar falls within the exception noted, in that because of the generally poor condition of the truck, its operation was dangerous to the public at large, and consequently should be held to have been a nuisance. Upon the point that a municipal corporation is liable for injuries occasioned through the maintenance of a nuisance, even though in connection with the discharge of governmental functions, appellant cites the annotation found in 75 A.L.R. 1196, 1197, and many cases from other jurisdictions. Appellant also cites Rem.Rev.Stat. § 9914, in which a nuisance is defined. The trial court directly found that neither the truck nor the operation thereof by respondent's employees constituted a nuisance. Continuing, the court found that the '* * * truck was a proper garbage truck, and finds that it had been driven for many months by the regular operator, James Critser, and that when driven with...