McGarvey v. City of Seattle, 35975

• Decision Date: 18 July 1963
• Docket Number: No. 35975,35975
• Citation: 384 P.2d 127,62 Wn.2d 524
• Court: Washington Supreme Court
• Parties: Franklin McGARVEY, Appellant, v. CITY OF SEATTLE, a municipal corporation, Respondent.

Page 524

62 Wn.2d 524

384 P.2d 127

Franklin McGARVEY, Appellant, v. CITY OF SEATTLE, a municipal corporation, Respondent.

No. 35975.

Supreme Court of Washington, Department 2.

July 18, 1963.

Orvin H. Messegee, Seattle, for appellant.

A. C. Van Soelen, Corp. Counsel, John A. Logan and Robert Ward Freedman, Assts. Corp. Counsel, Seattle, for respondent.

DONWORTH, Judge.

On June 1, 1959, appellant, Franklin McGarvey, 80 years of age, seriously fractured both legs and sustained other injuries when he fell into an open manhole in a sidewalk in downtown Seattle.

This action was instituted by appellant against the city of Seattle. At the trial, the evidence was in direct conflict concerning the presence or absence of a barricade around this open manhole at the time of appellant's accident. The jury was instructed by the trial court that if there was a barricade around this open manhole, the plaintiff could not recover. They were further instructed that, if there was no barricade, the city was negligent, and their verdict should be for the plaintiff, unless the plaintiff was contributorily negligent. The jury found for the city.

Mr. McGarvey had suffered from glaucoma for the last fifteen years. However, he testified that, at the time of his accident, he had no difficulty in seeing street lights, in seeing the curb going off and the curb coming up, that he could see at least 100 feet ahead, and that he never hurried. The trial court instructed the jury as to the right of a person suffering from impaired eyesight to use the street, and his duty of care in so doing. ¹

The manhole into which appellant fell was located in the sidewalk on the north side of Stewart Street, between Second and Third Avenues. The accident occurred during the afternoon at approximately 3:30 p. m A city light crew had arrived that morning to repair underground equipment. The testimony on behalf of the city was that, during the time the work was in progress, a warning barricade was erected around the hole. The barricade was made of aluminum, had three hinged sides, which made a 'fence' about four feet high, and was equipped with red flags. A ladder was placed in the hole and protruded a little over two rungs above the sidewalk level. The barricade and ladder were alleged to be in place except during the lunch period and morning and afternoon coffee breaks, at which times they were replaced by the cover. A truck containing materials used by the repair crew was parked at the curb near the manhole.

The crew consisted of a cable splicer and helper who worked down in the manhole, and a 'top' man, who worked on sidewalk level whose duty was to watch the hole and wait on the men below. If the top man had to enter the truck and leave the hole unwatched for more than a few moments (the top man on duty said 10 seconds and another witness said 2 or 3 minutes), it was his duty to call the helper to come to the top and guard the hole.

Appellant has presented five assignments of error for our consideration. We shall first discuss assignment of error No. 2:

'The court erred in withdrawing from the jury's consideration the question of wanton misconduct and in refusing to charge the jury thereon with the proposed instructions hereinafter set out on page 11.' ²

Appellant's position succinctly stated is this:

'The evidence in this case most favorable to the appellant warranted the court's submitting to the jury the question of wanton misconduct.'

The only question is whether there was a prima facie case of wanton misconduct to take the issue thereof to the jury.

Appellant's first witness was a Mrs. Sheldon. She testified that she passed the open hole a few minutes before the accident and that there was no barrier present. After the accident, she observed the appellant being raised from the hole, but she did not see the accident itself. Mrs. Sheldon testified as follows:

'And when I got between Second--Second and Third on Stewart, why, about the middle of the block there was a--I saw a manhole there. And I didn't see any cover over it or any railing around it. And I went up close to the building and sort of walked around and had to go in the alleyway a little bit.'

Mr. McGarvey testified that on his way down town he had observed the barricade in place, but that it was not in place when he returned, and that, if it had been there, he would have seen it.

There was evidence from which the jury could find that the barricade was not in place when appellant fell into the hole. It was admitted that the top man was not at the hole at the time of the accident. The city contends that this can support only a finding of negligence and not wanton misconduct.

In Adkisson v. Seattle, 42 Wash.2d 676, 258 P.2d 461 (1953), we defined wanton misconduct as follows:

'Wanton misconduct is not negligence, since it involves intent rather than inadvertence, and is positive rather than negative. It is the intentional doing of an act, or intentional failure to do an act, in reckless disregard of the consequences, and under such surrounding circumstances and conditions that a reasonable man would know, or have reason to know, that such conduct would, in a high degree of probability result in substantial harm to another.' 42 Wash.2d p. 687, 258 P.2d p. 467.

This was quoted with approval in Greetan v. Solomon, 47 Wash.2d 354, 287 P.2d 721 (1955). See, also, Bidlake v. Youell, Inc., 51 Wash.2d 59, 315 P.2d 644(1957).

In presenting the defense, the following questions and answers took place between counsel for the city and Mr. Scouller, the top man stationed at the sidewalk level. (References to a barricade are to an exhibit which was alleged to be of the same type used at the scene of the accident.):

'* * * All right, after the noon hour was that barrier put back in the position it is now? A. Yes. Q. How long did it remain so? A. Until two-thirty. Q. Then what happened? A. Then it was coffee time. Q. Coffee time. Then at coffee time what did you do? A. We lowered the ladder down the hole and pulled the lid over the hole. And then closed the fence and leaned it up against the truck. Q. When did you return from coffee? A. At a quarter to three Q. The barrier was put in place again? A. Yes. Q. What are your duties as a top man; do you remain all of the time immediately adjacent to that barrier, or have you other duties? A. Yes, I have other duties. I have to hop in and out of the truck all day long getting materials for the men below. Q. What are the men below doing? A. They are splicing cable. Q. You said that you had a truck; now, where was the truck parked? A. The truck, the truck was parked just a little,--well, let's see. Do you want the true directions? Q. Well, approximately. A. It's a little east of the hole and a little south of the hole, pointed, headed--it's a one-way street north, or I mean a one-way street westbound. Q. I see. Now, from the time that this barrier was replaced at approximately quarter to three, was it ever touched--strike that. How close were you to that barrier from a quarter to three, say, until three-thirty? A. Not within probably twelve feet. Q. Twelve feet, and what was the maximum distance that you went away--strike that. Where were you when you were twelve feet away? A. Inside the truck. Q. Along the curb. A. Ya. Q. Did you have this barrier continually under your observation either by ear or by sight? A. Yes. Q. Mr. Scouller, what happened around three-thirty? A. Well, I was standing in the truck getting some tape out of cupboards, and I heard this crash. Q. Just describe this crash.'

Mr. Scouller then described the crash, state he jumped out of the truck and found the barricade on the pavement.

The above testimony indicates that the top man was not within 12 feet of the hole for 45 minutes but was inside the truck. Just how observing the manholeby ear could have enabled Mr. Scouller to protest pedestrians was not explained. He later testified that he was within the truck for only 10 seconds and that he had looked down the street before entering the truck. Later still, when asked how long he was in the truck, he merely said: 'It wasn't very long.'

On cross-examination, Mr. Scouller was questioned in regard to his duty to guard the hole:

'Q. And it's true that you have to be around the frame to keep older people and infirm people out of the hole, is that not true? A. Yes. Q. To warn blind people to stay away, is that not true? A. Yes.'

And, later in the cross-examination:

'It is true, isn't it, Mr. Scouller, that there is nothing in your work that is as important as keeping your eye on that hole and keeping people out of it? A. That's true. Q. It's true, is it not, that thing right there won't do it by itself? A. That is partially true. Q. Now, Mr. Scouller, it's a fact, isn't it, that if you were in the area on the day that Mr. McGarvey fell, that you were away from the top of that hole for more than ten seconds? A. Was I away from the truck more than ten seconds? Q. Away from the top of the hole more than ten seconds. A. No. Q. Then it's your testimony that at no time do you leave the top of that hole for more than ten seconds; is that a fair statement? A. No, that isn't a fair statement. Q. All right. Then, how long do you leave the hole? A. Well, when it gets to be any longer than that, we call a man out of the hole. Q. So at any time that you are going to leave it for any longer than ten seconds, you call another man up? A. Yes.'

On recross-examination:

'Q. Did you get someone else to guard the hole on the day that Mr. McGarvey fell when you left? A. No.'

Mr. Hubbard, supervisor of the underground distribution system for the city of Seattle testified as to the instructions given to the top men:

'A. Well, the standard practice and in the standard instructions to the top man is, of course, that he assists the helper in opening the hole, placing the barricade, and seeing that the proper flags are placed on the...