McGough v. City of Edmonds, 11--40135--II

• Decision Date: 23 October 1969
• Docket Number: No. 11--40135--II,11--40135--II
• Citation: 1 Wn.App. 164,460 P.2d 302
• Court: Washington Court of Appeals
• Parties: George A. McGOUGH and Janet A. McGough, his wife, Appellants, v. The CITY OF EDMONDS, Respondent.

Page 164

1 Wn.App. 164

460 P.2d 302

George A. McGOUGH and Janet A. McGough, his wife, Appellants, v. The CITY OF EDMONDS, Respondent.

No. 11--40135--II.

Court of Appeals of Washington, Division 2.

Oct. 23, 1969.

Rehearing Denied Nov. 12, 1969.

Review Denied March 19, 1970.

Bangs, Castle & Bright, Truman Castle, Seattle, for appellants.

Anderson, Hunter & Carlson, William W. Baker, Everett, for respondent.

PEARSON, Judge.

This is an appeal from a summary judgment dismissing plaintiff's personal injury suit against defendant city.

The motion for summary judgment was heard on the plaintiff's complaint, the defendant's answer, and the plaintiff's response to interrogatories. There was also one affidavit from each side, describing the scene of the accident, with photographs attached.

Plaintiff alleged in his complaint:

On or about June 4, 1966, at about 2:45 P.M., the plaintiff, George McGough, was riding a Honda motor-bike in an easterly direction on 162nd Southwest in Edmonds, Washington. He stopped at the intersection of 75th Place on the hill. Because of the construction of the intersection, and the heavy growth of underbrush on the northwest corner, he was unable to properly observe traffic approaching on 75th Place West. He started out into the intersection and was struck by a car driven by one Dale E. Sherman, who had likewise been unable to see the plaintiff's motorbike waiting outside the intersection.

The accident was caused by the gross wanton, willful negligence and ordinary negligence of the City of Edmonds in the following particulars, among others:

1. In failing to construct a safe intersection for vehicular traffic;

2. In failing to properly keep up the easement owned by the City in such a manner that cars approaching the intersection could see each other;

3. In failing to erect signs to warn of an obviously dangerous situation.

In its answer, defendant denied the above allegations and asserted that plaintiff was contributorily negligent. Defendant moved for summary judgment, supporting its motion by written interrogatories to plaintiff and the affidavit of John Moran, City Superintendent of Streets. Plaintiff's responses to the interrogatories contained this description of the accident:

Going in an Easterly direction on 162nd Southwest in Edmonds, Wash., on June 4, 1966, at about 2:45 P.M., I stopped at intersection of 75th Place and was struck by an auto driven by Dale E. Sherman.

Plaintiff also stated in response to another interrogatory that he did not see the other vehicle before the accident, but 'just looked up and there he was.' In another answer plaintiff stated that he had not exceeded 10 miles per hour in the 200 feet before the collision.

The defendant's affidavit and accompanying photographs indicate that 162nd S.W. forms a 'T' intersection with 75th Place West. 162nd Street S.W. is constructed at an uphill grade to its intersection with 75th Place. The photographs also show that 75th Place curves to the left (west) north of the intersection. The affiant stated that the vegetation on the northwest corner of the intersection diminishes 'the view of oncoming traffic' but that the intersection could be safely negotiated and was not inherently dangerous.

In opposing the motion, plaintiff presented the affidavit of an investigator with accompanying photographs of the intersection. the photographs show the uphill grade of 162nd Street at the intersection, the vegetation on the northwest corner, and a 'Yield Right Of Way' sign at the intersection facing plaintiff's direction of travel. The investigator stated that the vegetation and grade at the intersection 'substantially and dangerously diminished' visibility of southbound vehicles on 75th Place, making the intersection 'difficult and dangerous to negotiate' for traffic entering from 162nd Street S.W. Both parties have questioned the conclusions expressed in the opposing affidavits, and we treat those conclusions as surplusage. Henry v. Saint Regis Paper Co., 55 Wash.2d 148, 346 P.2d 692 (1959).

The foregoing is a rather complete resume of the record on appeal, and so far as we may presume, is all the trial court had before it. Judgment provided:

Dismissal, with prejudice and with costs, shall be, and hereby is entered in this cause for the reason, that as a matter of law, defendant City of Edmonds, was not negligent on the facts and inferences therefrom alleged by the plaintiffs, defendant having no duty under the facts of this case to trim the vegetation from the unimproved portion of the right-of-way at the intersection in question.

This appeal is made more difficult by the fact that both parties obviously argued factual matters to the trial court (and do the same in their briefs on appeal) which are not a part of any evidentiary matters contained in the statement of facts. One of these matters was the direction of travel of the favored driver. The record is void of any testimony concerning the actions of the favored driver prior to the accident. Both parties state that he was proceeding from north to south but we are not told how far north of the intersection the westerly curve commences. Both the trial court and the appellate court are asked to draw inferences from photographs without accompanying testimony as to the place from which such photographs were taken.

The issue, then, is whether or not, on this record, the trial court was warranted in dismissing the action with prejudice under Rules of Pleading, Practice and Procedure 56, RCW vol. 0.

We repeat the frequently stated rule that the office of a summary judgment is to avoid a useless trial. In Almy v. Kvamme, 63 Wash.2d 326, 329, 387 P.2d 372, 374 (1963) the Supreme Court stated:

It (summary judgment) is to test, in advance of trial, whether evidence to sustain the allegations in the complaint actually exists. Evidentiary pleadings alone, if properly challenged by controverting affidavits, depositions, and admissions presented by the moving party, will not carry the issue of fact to a trial. The object of a motion for summary judgment is to separate the wheat from the chaff in evidentiary pleadings, and to establish, at the hearing, the existence or nonexistence of a genuine, material issue. Preston v. Duncan, 55 Wash.2d 678, 349 P.2d 605 (1960).

This rule is more readily stated than applied and brings into focus the burden placed upon both parties when summary judgment is sought. The moving party is said to have the burden of showing that there is no genuine issue of material fact on each theory of liability advanced by his adversary. Preston v. Duncan, Supra. When this is done, the non-moving party may not rest upon the mere allegations or denial of his pleadings, but his response, by affidavits or as otherwise provided in the rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment follows. W. G. Platts, Inc. v. Platts, 73 Wash.2d 434, 438 P.2d 867 (1968).

Did the defendant meet his burden in this case? If we disregard the improper conclusion contained in the affidavit of his witness, John Moran, the evidence showed, without dispute, that the plaintiff, proceeding easterly on South 162nd Street, approached the 75th Place intersection at a slow speed and brought his Honda motorbike to a stop at its entrance. View to his left was obstructed by vegetation growing off the street. He proceeded into the intersection and was struck by a southbound vehicle which, by virtue of a 'Yield Right Of Way' sign, had the right-of-way.

These facts were not disputed by the plaintiff's affidavits, pleadings or photographs. Defendant urges that these undisputed facts establish nonliability of the city as a matter of law, because:

(1) There is no duty on the city to maintain unobstructed view intersections. Barton v. King County, 18 Wash.2d 573, 139 P.2d 1019 (1943).

(2) A street is not rendered 'inherently dangerous' so as to require the erection of warning signs solely because the municipality fails to cut down the natural vegetation which tends to obstruct the view at an intersection. Bradshaw v. City of Seattle, 43 Wash.2d 766, 264 P.2d 265, 42 A.L.R.2d 800 (1953); Rathbun v. Stevens County, 46 Wash.2d 352, 281 P.2d 853 (1955).

(3) In any event the absence of other warning signs would be immaterial, inasmuch as plaintiff had notice of the danger and brought his vehicle to a stop at the intersection. Lee v. Sievers, 44 Wash.2d 881, 882, 271 P.2d 699, 700--701 (1954):

(Plaintiff wife) cannot rely upon defendants' failure to place barriers or warning signs at the point in question. The conditions being apparent and known to her, there was no necessity for signs and barriers. Their only object is to give notice of a dangerous situation.

These are all correct statements of the law and applicable here.

(4) Defendant also urges that these undisputed facts show that the plaintiff was guilty of contributory negligence as a matter of law in failing to yield the right-of-way to the driver on 75th Place.

However, plaintiff contends that the photographs depict (1) 162nd as a steep grade up to the intersection, (2) a westerly curve on 75th Place, an undetermined distance to the north of the intersection, (3) an absence of warning signs on 75th Place, and (4) heavy growth of vegetation on the northwest corner. Consequently, an issue of fact should exist as to whether or not the intersection was 'inherently dangerous' so as to require appropriate warnings to both drivers.

He relies on those cases which require the municipality to give appropriate warnings where the facts show an inherently dangerous condition of the roadway or of such character as to mislead a traveler exercising reasonable care. Lucas v. Phillips, 34 Wash.2d 591, 209 P.2d 279 (1949); Ulve v. City of Raymond, 51 Wash.2d 241, 317 P.2d 908 (1957); Schneider v. Yakima County, 65 Wash.2d 352, 397 P.2d 411 (1964); Provins v. Bevis, 70 Wash.2d...