Melovitch v. City of Tacoma

• Citation: 238 P. 563,135 Wash. 533
• Decision Date: 18 August 1925
• Docket Number: 19316.
• Parties: MELOVITCH v. CITY OF TACOMA.
• Court: United States State Supreme Court of Washington

238 P. 563

135 Wash. 533

MELOVITCH v. CITY OF TACOMA.

No. 19316.

Supreme Court of Washington

August 18, 1925

Department 1.

Appeal from Superior Court, Pierce County; Card, Judge.

Action by Fila Melovitch by A. H. Melovitch, her guardian ad litem against the City of Tacoma. From a judgment for plaintiff defendant appeals. Affirmed.

E. K Murray, Leo Teats, and Lorenzo Dow, all of Tacoma, for appellant.

Boyle &amp Boyle, of Tacoma, for respondent.

PARKER J.

This action was commenced in the superior court for Pierce county in behalf of the plaintiff, Fila Melovitch, a minor, seeking recovery from the defendant city for personal injuriies suffered by her from falling off an elevated sidewalk alleged to have been negligently maintained by the city, in that it had not properly guarded the sidewalk by suitable railings. A trial upon the merits in that court sitting with a jury resulted in a verdict awarding recovery against the city in the sum of $1,000, and a judgment rendered thereon accordingly, from which the city has appealed to this court.

It is contended in behalf of the city that the trial court erred in overruling its motions timely made to take the case from the jury and decide as a matter of law that no recovery could be had against the city. We first notice this contention in so far as it rests upon the claim of insufficiency of the evidence to support recovery. At the time the child was injured she was five and one-half years old. Puyallup avenue runs east and west. At the place in question the surface of its concrete roadway and sidewalks are approximately 20 feet above the natural surface of the ground. They rest upon a masonry viaduct something more than a block long. On the ground under and near the structure are railway tracks and some industrial plants. The sidewalk on the north side of the roadway has a bay extension having the effect of widening it outwardly to the north approximately 7 feet for a distance along the walk of some 20 feet or more; the main portion of the walk being also about 7 feet wide. This bay was constructed as a part of the concrete structure with a view to the future construction of a stairway down from one or possibly both ends of it to the ground. The ends of the bay are straight, and at right angles to the sidewalk line. The concrete surface of the bay is but a widening outwardly of the concrete surface of the sidewalk. A railing consisting of posts and rails of 2-inch pipes runs along the outer edge of the sidewalk across the ends of the bay and along the outer edge of the bay; there being no division or mark of any nature separating the surface of the sidewalk from the surface of the bay. There are but two rails of 2-inch pipes, one 25 inches above the surface of the sidewalk and bay and another 18 inches higher. The rails across the east end of the bay are a little more than 3 inches farther east than the east end of the surface of the bay, and are therefore outside of its surface at that end. There is no other protection whatever at that end of the bay. The rails along the sidewalk are over 5 inches inside of its outer edge.

The child, her mother, and another woman were walking east on the north sidewalk over the viaduct. As they proceeded, the child was sometimes ahead, sometimes back of, or alongside of, the women, as her inclinations dictated. When the women had reached a point about opposite or possibly just past the east end of the bay, the child fell to the ground. The only witness who can be said to have seen the child fall or start to fall testified as follows: 'Q. I will ask you if on or about the 13th of November, 1924, you were in that vicinity during about the time that a little girl fell off that sidewalk down below? A. I was just across the street from where she fell.

'Q. I wish you would tell the court and jury what, it anything, you saw there with reference to this accident? A. Well, I was standing just straight across the street from where the accident happended; I was talking to a man, and I just happened to be looking across, and seen two women coming down the street. Just as they got to where the little girl fell off I seen something flash, looked more like some papers she had in her hand. I thought it was one of the women throwing something over. These women stopped 8 or 10 feet beyond, and she noticed the title girl was gone. I ran across the street right at that time, and seen that it was this little girl.

'Q. Where did you see the little girl? A. She was lying down below on the tracks there.

'Q. Could you tell whether the little girl was behind or ahead? A. She must have been just even with them, because I never seen her.

'Q. Could you tell whether or not the little girl was playing around that railing there? A. Well, I don't think she could be, because when they walked it seemed like they walked past--there is a point there that projects out right at that point. They walked up there, and just as they did there was this flash. It looked like a newspaper.'

The argument upon this branch of the case is in substance that there is no evidence or fair inference to be drawn from the evidence as to how or what caused the child to fall. It seems to us that the facts we have noticed, as to which there is practically no dispute, warranted the jury in believing, as they evidently did, that the child fell off the east end of the bay, that is, between the east end of the surface of the bay and the...