Layton v. City of Yakima

• Decision Date: 29 November 1932
• Docket Number: 24122.
• Citation: 170 Wash. 332,16 P.2d 449
• Parties: LAYTON et al. v. CITY OF YAKIMA.
• Court: Washington Supreme Court

16 P.2d 449

170 Wash. 332

LAYTON et al. v. CITY OF YAKIMA.

No. 24122.

Supreme Court of Washington

November 29, 1932

Department 2.

Appeal from Superior Court, Yakima County; Dolph Barnett, Judge.

Suit by Eugene Layton and another against the City of Yakima. From a judgment in favor of plaintiffs, defendant appeals.

Affirmed.

V. O Nichoson and I. J. Bounds, both of Yakima, for appellant.

Floyd Foster and D. V. Morthland, both of Yakima, for respondents.

HERMAN J.

Plaintiffs Eugene Layton and Leslie Layton each brought suit against the defendant for injuries sustained by them because of the alleged negligence of the city of Yakima in the conduct of construction work being done by that city upon the waterworks system which it owned and operated. The causes were consolidated for trial, and resulted in verdicts for each of the plaintiffs. Judgment was entered against the defendant, and defendant appeals therefrom.

Appellant makes a number of assignments of error, which raise two principal questions. The first of these is: Was the city guilty of negligence?

For about six weeks prior to the time that respondents received their injuries, the appellant was improving its water system by laying new pipes along Yakima avenue, a highway running east and west in the city of Yakima and intersected at right angles by other streets. Traffic was permitted while the construction was under way. At each street intersection along the portion of Yakima avenue under construction were placed signs, the purpose of which was to caution drivers to proceed slowly and carefully. Respondents conceded the efficacy of such signs in the daylight for the purpose for which they were erected, but introduced evidence tending to show that they did not serve their purpose at night, because of the position of flares which were set upon the pile of gravel removed from the ditch. Respondents' injuries were sustained about 12:30 a. m., on the night of July 15-16 1931. On Yakima avenue were two sets of street car tracks--one to the south of the center of that thoroughfare and the other to the north--which will hereafter be referred to as the south track and the north track. The signs at the street intersections cautioning traffic to move slowly and carefully were placed at each end of the large mound of gravel which extended along the block, covering and rising above the south track four or five feet, and extending to within about two feet of the south rail of the north track. This pile of gravel was called to the notice of the public at night by flares lighted and placed on the north side thereof, about one foot above its edge. These flares were from forty to sixty feet apart. While the construction was under way, traffic was permitted to travel along the north track immediately north of the line of flares. The large trench from which the gravel had been excavated was south of the south track. This condition with reference to Yakima avenue had existed for approximately six weeks prior to the time respondents received their injuries. That night appellant's employees were filling the large trench, and, to aid them in so doing, were using a piece of machinery known as a back-filling machine. This device consisted of a Ford truck, upon the bed of which was a superstructure consisting of winches, drums, and a combination of related parts that extended approximately five feet above the bed of the truck. Attached to the center of the bed of the truck, and part of this contrivance, was a boom eighteen feet long and six inches in diameter. Four iron cables above and one below the boom extended to a sheave on the outer end thereof, and by means of these a scraper was operated. The body of the truck and the housing of the sheave at the end of the boom were each painted a color calculated to attract attention and called 'traffic yellow.' The boom was painted with a less conspicuous color. This device had no over-all length of thirty-six feet. The street was sixty-eight feet from curb to curb.

The method of operating the back-filling machine was to first get the truck into position, with its front wheels against the north curb, and adjust the scraper attached to the boom Before the portion of the pile of gravel that was to be pushed and scraped into the trench south of the car tracks. This process of getting the back-filling machine into position for operation was referred to by the witnesses, and will hereinafter be referred to as 'making a set.' Each 'set' permitted the device to push a strip of gravel about six feet wide into the trench, after which it became necessary to again 'make a set.' A number of men were employed, working in and upon the back-filling machine at the time the respondents were injured. The only lights maintained on any part of the contrivance were the headlights of the truck, which were pointed north toward the sidewalk that bordered the street. When the machine was at work filling the trench, a red lantern was kept on the pavement near the right front wheel of the truck. When the machine was moved to 'make a set,' this red lantern was moved by a member of the crew and placed near the right front wheel.

According to respondents' testimony, at the time of the collision appellant's crew were just finishing 'making a set.' The hoist operator was in the truck, the front end of which was almost at the north curb. The member of the crew carrying the red lantern was close to the north curb with the lantern, which he was swinging parallel to the curb. The lane of travel along the north track was wholly unguarded. There were no lights on the eighteen-foot boom, which protruded from the truck across the track. The truck was unlighted, save for its headlights, which were extending their light across the sidewalk at right angles to the line of traffic. There was no watchman, nor were there lights or protection of any kind guarding the line of travel in the block between Third and Fourth avenues, where the collision occurred. The street was illuminated by the lights that constitute part of a modern street lighting system. A more detailed reference to such lights will be made in that portion of this opinion which deals with the question as to whether respondents were guilty of contributory negligence. Respondents' evidence indicated that they proceeded along the north track, following the lane of travel, in an automobile driven by respondent Leslie Layton, at the rate of about twenty miles per hour. While proceeding along their course, the hood of the automobile passed under the boom, which, coming in contact with the upper portion of the body of the car, crushed that and severely injured respondents.

In view of the circumstances disclosed by the evidence in the case at bar, the trial court properly submitted to the jury the question of whether appellant was guilty of negligence in its manner of conducting the work on the street.

The second question raised by appellant is: Were respondents guilty of contributory negligence, as a matter of law?

The operation of the back-filling machine was being conducted in an area that was illuminated by a modern electric lighting system. There were two lights of four hundred candle power each on both sides of the street. At the time respondent collided with the boom, the closest of these lights was approximately sixty feet from the nearest point of the back-filling machine, and nineteen feet above the pavement. There was evidence introduced showing that at night a newspaper, printed in ordinary type, could be read on the sidewalk sixty feet from one of these lights. There was testimony which showed that an experiment had been subsequently conducted with the back-filling machine at night, under conditions similar to those prevailing at the time of the collision complained of, and witnesses testified that the boom and back filler were visible from one hundred fifty to four hundred feet away.

The testimony of respondents is that they did not see the...