Leber v. King County

• Decision Date: 21 June 1912
• Citation: 124 P. 397,69 Wash. 134
• Parties: LEBER v. KING COUNTY.
• Court: Washington Supreme Court

124 P. 397

69 Wash. 134

LEBER v. KING COUNTY.

Supreme Court of Washington

June 21, 1912

Department 1. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by Frederick Leber against King County. From a judgment of dismissal, plaintiff appeals. Affirmed.

William Parmerlee, for appellant.

John F Murphy and Robert S. Evans, for respondent.

PER CURIAM.

This is an action to recover damages for personal injuries. A demurrer to the complaint for want of facts constituting a cause of action having been sustained, and the plaintiff electing not to plead further, judgment of dismissal was rendered against him accordingly. From this disposition of the cause the plaintiff has appealed.

The contentions of counsel require us to notice only the following allegations of the complaint: 'That the said defendant on the 31st day of August, 1910, and for a long time prior thereto, disregarded its said duty in this: That on said date, and for a long time prior thereto, on the county road and public highway and about one-quarter of a mile east of the city limits of Kent, on that certain public road and highway known as the Black Diamond road, and about 400 feet west from where the Molke road branches off therefrom, said defendant so carelessly and negligently maintained and suffered to exist upon said highway, on the right-hand side thereof traveling eastward from Kent and not separated from said road and highway in any manner whatsoever, a steep, precipitous, and sheer decline and pitfall of some eight or ten feet to the bottom thereof measuring from the level of said road and highway, and that the said defendant carelessly and negligently suffered and permitted said decline and pitfall to be and remain at said place without any protection to travelers and persons using said highway, and negligently and carelessly failed to erect barriers or a railing or anything whatsoever to keep or prevent a traveler or his horse and wagon from being thrown and precipitated off of said road and down and over said steep bluff and declivity, and that said conditions above described had existed at said place with the knowledge of the said defendant for a long period of time before the plaintiff was injured thereat as hereinafter set forth. That on said 31st day of August, 1910, the plaintiff was driving his horse and wagon along said road at said place above described which said road at said place is very narrow, not exceeding 15 feet in width, and the said plaintiff in order that other vehicles might pass was keeping to the right side of said road, and other persons and their teams and automobiles were about to pass the plaintiff in an opposite direction, and the horse and buggy of plaintiff was compelled to take a position very close and near to said declivity and precipice and the horse of plaintiff in getting his position to avoid contact and collision with other vehicles, automobiles, and horses on said road, shied or veered to the right, and lost his footing, and fell down and into said declivity and precipice throwing the plaintiff from the seat of his said wagon a distance of some 16 feet, where the plaintiff struck logs and other hard substances lying in said declivity. That by reason of there being no guard rails or other obstruction or barrier at said dangerous place to prevent said horse and wagon from falling over the same, and by reason of the carelessness and negligence of the defendant in maintaining and suffering its road to remain in said condition at said time and place, the plaintiff was so thrown over said precipice, and was injured.'

It is at once apparent that the only negligence of the county relied upon by the appellant for recovery is the failure of the county to maintain a railing or barrier at the side of the road next to the declivity, since no facts are alleged indicating other defects in the highway rendering it unsafe for travel by teams and vehicles. Appellant relies primarily upon the text of 15 Am. & Eng. Ency. of Law (2d Ed.) p. 455, where it is said: 'If there is a dangerous place, however, such as a declivity or excavation, so close to the highway or to the traveled part thereof as to render the latter unsafe for travelers in the absence of a railing or barrier, the want of such railing or barrier constitutes a defect in the highway itself, for injuries from which the municipality is liable.' This text was quoted with approval in Neel v. King County, 53 Wash. 490, 102 P. 396. That it was properly applied as the governing principle in that case there can be no doubt. The danger there was a washout so near the traveled highway as to make the danger obvious or unusual. The duty to put barriers upon a highway, although travel thereon be in a degree dangerous is not absolute. The law does not require it unless the danger complained of is unusual. The text just quoted continues: 'But the danger which requires a barrier must be of an...