Neel v. King County

• Decision Date: 11 June 1909
• Citation: 102 P. 396,53 Wash. 490
• Parties: NEEL v. KING COUNTY.
• Court: Washington Supreme Court

102 P. 396

53 Wash. 490

NEEL v. KING COUNTY.

Supreme Court of Washington

June 11, 1909

Department 2. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by John B. Neel against King County. From a judgment for plaintiff, defendant appeals. Affirmed.

K Mackintosh and John W. Whitham, for appellant.

John B Hart and Robert H. Evans, for respondent.

DUNBAR J.

The complaint alleges: That the defendant King county maintains, among other roads and highways, a road and highway passing along throught the town of Falls City and along a river bank, which road has been in existence for many years previous to the 30th day of November, 1907, the date of the accident which is the subject of this suit. That previous to said day it had at all times been maintained in a safe condition for the traveling public for teams, etc. That the plaintiff was familiar with said road as it had existed for years previous to said day. That on said day the highway had become dangerous to life and limb of travelers, in that through the center of the highway and road a large washout occurred which the defendant permitted to exist. That said washout was to a depth of from eight to twelve feet across the entire width of the road, as it passed over the principal street of Falls City and as it bordered or skirted the river bank. That said washout had occurred several days previous to the 30th day of November, 1907, and that the condition of the road was well known to the authorities, etc. That on the 30th day of November, 1907, and in the nighttime of said day, while the defendant carelessly and negligently maintained and permitted to exist said ditch, which constituted a death trap and mantrap, without railings or warning signals of danger, plaintiff with other persons in a wagon, driven by horses, driving over said highway, not knowing the condition of the road, approached said road, passing over the said road from the north and west, and passed over the bridge spanning the Snoqualmie river. That immediately after passing over said bridge he turned on to the right and passed down the highway running through the town of Falls City. That the night was dark, and there were no railings or barriers to prevent one from driving into said ditch, and that, owing to the darkness of the night and the absence of railings or barriers, the team stepped off said bridge and highway, causing the accident complained of. It seems that there was a barrier crossing that portion of the street next to the sidewalk. As we understand it, the street or roadway was on the south side of the Snoqualmie river, and all the buildings were on the south side of the street. The defendant answered, denying negligence on its part, and alleging contributory negligence on the part of plaintiff in driving around the barriers which it had erected over a portion of the road, and proceeding to travel on that portion of the road outside of the barrier. The case was tried to a jury, and verdict was rendered in favor of plaintiff for the sum of $5,510.

There is a sharp conflict in the testimony as to whether the barrier which had been erected by the authorities reached across the full width of the road, or whether the place at which the plaintiff was driving at the time of the accident was a part of the highway, or whether it was north of the highway; and that is, in fact, the main question in the case. The assignments of error on this appeal are that the court erred (1) in denying defendant's motion to take the case from the jury at the close of plaintiff's evidence; (2) in overruling defendant's motion for a nonsuit; (3) error in admission of testimony; (4) error in giving and refusing to give instructions to the jury; (5) in denying defendant's motion for judgment notwithstanding the verdict; (6, 7) and in overruling defendant's motion for a new trial and entering judgment in favor of plaintiff.

It is contended by the appellant that there is no substantial testimony to the effect that the respondent was on the highway at the time the accident occurred. It is also contended that it is immaterial whether or not respondent was on the highway when he drove into the washout, as the court took that question from the jury by giving the following instruction: 'Should you further find that the wagon went into said ditch beyond and outside of the road line, but that the place where it went in was not marked off from the county road, and was theretofore and then used as a part of the county road, and that its general condition was a smooth surface and a continuance of the county road, and that the place where the injury occurred was close to the line of the county road, and that persons using ordinary care would be liable to drive off of the road and into the land adjoining if you find these things, then I instruct you that it makes no difference whether the accident occurred on the roadway proper or near it'--because, as is said by the appellant, this eliminates from the consideration of the jury the question of whether the respondent was actually on the roadbed at the time the accident occurred. It is claimed that this instruction is in violation of the law, and many authorities are cited to sustain that contention. Among others appellant quotes from Elliott on Roads and Streets (2d Ed.) § 621, where it is said: 'The general rule appears to be that the duty to keep in repair extends only to the 'traveled path' or portion of the way in actual use, provided it is wide enough to be safe. Necessity and expediency, without anything more, would probably justify such a rule in the case of county roads.' The cases cited by that author to sustain the text and those cited by the appellant we have examined, and it appears to us that neither the text cited nor the authorities referred to are in point. It is, no doubt, true that the general rule is that the duty of the county or the city is only to keep in repair that portion of the way in actual use, provided it is wide enough to be safe. But there is an element in the instruction here that is not discussed or decided in the cases cited by appellant, and we have been unable to find any authority in text-books or cases where it is held that where a county uses and keeps in repair a certain territory as a road for travel, and has invited the public to use it as a road, it can escape liability for not mending or guarding the danger suddenly created across the highway simply because the pitfall or danger was not within the limits of the road to which the county held the legal title. That is exactly the proposition involved in this instruction; for it will be noted that the court incorporated the...