McClung v. King County

• Decision Date: 06 March 1922
• Docket Number: 16921.
• Citation: 119 Wash. 14,204 P. 1064
• Parties: McCLUNG et ux. v. KING COUNTY.
• Court: Washington Supreme Court

204 P. 1064

119 Wash. 14

McCLUNG et ux. v. KING COUNTY.

No. 16921.

Supreme Court of Washington

March 6, 1922

Department 2.

Appeal from Superior Court, King County; Austin E. Griffiths, Judge.

Action by H. F. McClung and wife against King County. Judgment for plaintiffs, and defendant appeals. Affirmed.

The plaintiff claimed, and introduced evidence to prove, that the accident caused hemorrhages of the womb, that an operation was performed to stop the hemorrhages about 10 months after the accident, and that the womb continued to bleed at the time of the trial.

Malcolm Douglas, Howard A. Hanson, and Wm Parmerlee, all of Seattle, for appellant.

Thos D. Long, of Seattle, for respondents.

TOLMAN J.

This is an action to recover damages for personal injuries alleged to have been sustained by the respondent Myrtle P. McClung while traveling upon a public highway in King county. The plaintiffs were awarded a verdict of $10,000, and from a judgment thereon the county appeals.

The facts admitted and which the jury may have found from conflicting evidence are substantially as follows:

A highway, now known as permanent highway No. 14, has existed many years, extending some miles in a southerly direction from the city of Seattle to the town of Des Moines. Some years prior to the time in question, under the permanent highway act (Rem. Code, § 5879-1 et seq.), this highway was paved with brick, laid on a cement foundation, without expansion joints, except one section a mile in length which was laid with expansion joints. On June 21, 1920, respondents were driving over this road in a truck, the husband operating the truck, and the wife with their two children on the seat beside him. The truck was not loaded. They were traveling at a speed of some 13 miles per hour. To all appearances the road was in excellent condition, free from obstructions, and apparently safe for travel. Suddenly, and without any warning sound or indication, the pavement underneath the truck exploded with great force, tearing up about 200 square feet of the surface, hurling brick and débris into the air 15 to 20 feet, and throwing large pieces of the paving material 2 feet or more in diameter clear of the roadway. The force of the explosion stopped the truck instantly, and Mrs. McClung was thrown therefrom to the pavement, sustaining the injuries complained of. Other evidence in the case will be mentioned in the proper connection as we proceed.

The complaint charges negligence in three respects: (1) That the county adopted a plan for the improvement of the highway which was defective, specifying the alleged defects; (2) that the county was negligent in adopting such plan, and in constructing the road according to its specifications, in that it could, by the exercise of reasonable care and diligence, have ascertained that such defects existed in the plan in advance of the construction; (3) that the county failed and neglected to keep and maintain the road in a reasonably safe condition for ordinary travel after it had been constructed.

Upon the objection of the county, the trial court ruled out the evidence offered by respondent tending to prove the two first mentioned allegations of negligence, upon the theory that the county was acting as the direct agent and under the direction and control of the state in the adoption of plans and carrying out the construction work thereunder. The county, of course, does not complain of this ruling, so far as it goes, and in the absence of a cross-appeal its correctness is not now before us for review, and we must assume for present purposes that it was a proper holding. The county does, however, complain because the ruling was not extended so as to cover also the third charge of negligence as to upkeep and maintenance, contending that in these matters it acted as the direct agent of the state, using funds raised by state tax levies, and, even if not, there would be no liability upon the county if it maintained the highway in the same or as good condition as it received it.

The act under which this improvement was constructed provides for maintenance after construction, as follows:

'Whenever the improvement of any permanent highway shall have been completed and accepted under the provisions of this act, the same shall be maintained in the same manner as is provided by law for the maintenance of other public highways and roads.' Rem. Code, § 5879-12.

If this means in the manner provided by law at the time of the enactment of that particular statute, then it places the duty to maintain upon the county; for, going back as far as 1903 by statute the duty of maintenance of all roads was placed upon the county, with the single exception of state roads as defined by Rem. Code, § 5897, built entirely with state money, as provided by chapter 186 of the Laws of 1909. Respondents contend that this act has been repealed, but, whether so or not, it clearly does not apply to the highway now under consideration, which was built with money raised by assessment against the property benefited, and by a tax on the property of King county, levied by the state, it is true, carried into the permanent highway fund, but there held by the state to the credit of King county, and to be expended only in King county. But in any event the act of 1911...