Laurelon Terrace v. City of Seattle, 31887

• Decision Date: 31 July 1952
• Docket Number: No. 31887,31887
• Citation: 246 P.2d 1113,40 Wn.2d 883
• Parties: LAURELON TERRACE, Inc. v. CITY OF SEATTLE et al.
• Court: Washington Supreme Court

Page 883

40 Wn.2d 883

246 P.2d 1113

LAURELON TERRACE, Inc. v. CITY OF SEATTLE et al.

No. 31887.

Supreme Court of Washington, Department 1.

July 31, 1952.

A. C. Van Soelen, Arthur Schramm, Seattle, for appellant.

Todd, Hokanson & White, Seattle, for respondent.

WEAVER, Justice.

This is an appeal from an order granting plaintiff a new trial after a jury verdict in favor of defendant. The action was one for damages resulting from the flooding of plaintiff's property. The new trial was granted solely upon the ground that the court erred in giving a certain instruction relating to contributory negligence.

The appellant contends the instruction was a proper one. Respondent argues that it was improper, but, that if we hold the instruction to have been proper, then we

'* * * may pass upon and determine all the questions of law involved in the cause presented upon such appeal and necessary to the final determination of the cause. Respondent may present and urge claimed errors by the trial court in instructions and rulings which, if repeated on a new trial, would constitute prejudicial error.' 34A Wash.2d 23, Rule 16, Rules on Appeal.

Pursuant to this rule, respondent urges that the trial court erred in giving certain additional instructions and in refusing to submit to the jury certain requested instructions.

In Ellefsen v. Wilt, 36 Wash.2d 56, 217 P.2d 318, we said 'We have held in a long line of cases, beginning at least as early as Davis V. Gilliam, 14 Wash. 206, 44 P. 119, that when no other verdict than that rendered by the jury could be permitted to stand, it is unnecessary to determine whether the trial court erred in giving or refusing to give an instruction. [citing cases]

'Another long line of cases based on the same reasoning holds that where no other verdict than that rendered by the jury could be permitted to stand, errors in instructions given or refused are not material and cannot be made the basis for granting a new trial. A number of these cases are cited in Sellman v. Hess, 15 Wash.2d 310, 130 P.2d 688 * * *.' (Italics ours.) 36 Wash.2d at page 57, 217 P.2d at page 318.

Before we can examine the propriety and correctness of the instruction relating to contributory negligence and the other instructions given and refused to which complaint is directed, we must, of necessity, determine whether a verdict other than the verdict rendered by the jury could be permitted to stand. We will not needlessly discuss multiple assignments of error relating to instructions, when, construing the evidence in the light most favorable to the party requesting a new trial, it cannot be said that the jury, under proper instructions, could have brought in any other verdict than that which it rendered.

Specifically, we must first concern ourselves with the question of the possible primary negligence of the city, for it would be idle to decide questions of contributory negligence as included in the instructions if the evidence does not disclose primary negligence. If the evidence was insufficient to justify a verdict in plaintiff's favor, it was error for the trial court ot award a new trial.

Plaintiff's property is located in the southern portion of a natural watershed within the city limits of Seattle. Although its boundaries vary according to topography, generally, the watershed is bounded on the north by east 85th street; on the east by 50th avenue N. E.; on the south by Union Bay; and on the west by 34th avenue N. E. It contains approximately eight hundred twenty acres. The east, north, and west limits slope toward its center. To drain this area of water flowing toward its center from its natural slopes a natural stream flowed from the north end of the watershed in a southerly direction, eventually emptying into Union Bay.

The stream ran in an open channel. When it intersected streets it was carried, for many years, by thirty-six-inch covered culverts or pipes, but was otherwise permitted to flow in its natural bed.

In the southern portion of the drainage area, 40th avenue N. E. (running north and south) intersects east 55th street (running east and west), at right angles. Since this intersection is an important one for the purpose of this case, we will, for the sake of brevity, hereafter refer to it as '40-55.' This intersection is approximately two thousand feet in a straight line from the point where the stream entered plaintiff's property. The stream, running in a southeasterly direction, was carried under '40-55' by a thirty-six-inch pipe. Numerous exhibits show it as being under the northeast side of the intersection. From there it ran through several properties, under a railroad right of way and Sandpoint Way near east 50th street by means of thirty-six-inch pipes, and, as an open stream, entered the east side of the unimproved property later purchased by plaintiff, flowing in a southwesterly direction for about three hundred feet and then turned slightly to the right, leaving the property at a point on 40th avenue N. E.

We now turn to two situations described with much detail in the evidence: first, the sewage and drainage system of the area prior to September, 1948, the date the city commenced revamping the sewage and drainage system; and second, what the city did between that date and February 10, 1949, the date plaintiff's property was first flooded; for we are searching the record in order to find facts constituting actionable negligence on the part of defendant city.

Prior to 1931, all natural drainage of the area was handled by the stream, sometimes described as a rivulet or small creek. In 1931 the city installed some combination storm and sanitary sewer lines to handle the sewage and drain a portion of the storm water from the area. These lines funneled the sewage and some of the storm waters into the intersection at '40-55.' This intersection was the lowest point in the watershed where water could enter the trunk sewer by gravity. At that point, the stream become a part of the sewage system of the city in a rather complex manner.

The stream was carried under the intersection through a thirty-six-inch pipe which came out near the southeast corner of the intersection, from which point the open stream bed carried it.

At or near the intersection were four manholes. Under each was a collection chamber. Just east of the intersection there was an overflow manhole into which a thirty-inch sewer line from the east emptied. From that manhole a twelve-inch line ran into a manhole near the south line of the intersection. From the east manhole there was also an overflow pipe running into the thirty-six-inch culvert which carried the stream. When the twelve-inch line could not handle the flow, a weir diverted the excess into the overflow pipe and thence to the stream.

Just east of the intersection there was a manhole serving an eight-inch sewer. From this manhole an eight-inch line ran to the south manhole.

The drainage area to the west was served by a twenty-one inch sewer which ran into a manhole on the west side of the intersection. This manhole was so constructed that by means of a weir, a ten-inch pipe would conduct the combined sewage and drainage to the south manhole. If the flow into the west manhole became more than the capacity of the ten-inch pipe, the weir diverted the excess to a twenty-one-inch pipe which crossed the intersection from the west in a southeasterly direction to the stream.

The fourth manhole was, of course, the south one. In addition to the lines already described as emptying into it, it received drainage from a twelve-inch sewer coming from the north under 40th avenue N. E. The south manhole was the entrance to the 40th avenue N. E. main trunk twenty-four-inch sewer. If there was an overflow from the south manhole, it too returned to the stream.

The evidence shows the convergence, at the south manhole, of pipes capable of carrying forty-two inches of sanitary sewage and drainage which drains into a twenty-four-inch trunk sewer. Any time the twenty-four-inch sewer was carrying its capacity, all additional water was returned to the stream. Or, in other words, for almost twenty years the stream was an integral part of the sewer system of this particular drainage area and carried all of the drainage north of east 55th street except that which was collected by the existing catch basins and sewer lines and channeled through the intersection at '40-55' into the twenty-four-inch trunk sewer. The stream, in its natural state below the intersection, was at all times sufficient to accommodate all sewage and drainage returned to the stream. There was no evidence presented that the stream ever overflowed its banks under this condition.

This was the condition which existed when plaintiff's predecessor acquired its property in 1946. It is bounded on the west by 40th avenue N. E., diagonally on the north by Sandpoint Way, on the south by east 45th street, and on the east by some vacant property to the north and by private homes to the south. The stream crossed the property as we have heretofore described.

In 1947 plaintiff decided to improve the property by building garden-type apartment buildings thereon. Along with problems of future sewering, and a proposed paved public street through the property, (which eventually was built over a part of the stream after it had been filled in by plaintiff) plaintiff's officers were concerned about what could be done with the stream. Plaintiff's officers and agents held two conferences with the city engineer. The trial court received statements made by the city engineer, not as evidence of defendant's negligence, but as bearing upon the narrower issue of whether, in following the advice of the city engineer, plaintiff's agents had used due care. The statements were, in the words of the trial court, 'just an opinion of some citizen.' What the city engineer advised will be taken by us as what any engineer consulted by plaintiff...