Overton v. Wenatchee Beebe Orchard Co.

• Decision Date: 10 July 1947
• Docket Number: 30158.
• Citation: 183 P.2d 473,28 Wn.2d 377
• Parties: OVERTON et al. v. WENATCHEE BEEBE ORCHARD CO.
• Court: Washington Supreme Court

183 P.2d 473

28 Wn.2d 377

OVERTON et al. v. WENATCHEE BEEBE ORCHARD CO.

No. 30158.

Supreme Court of Washington

July 10, 1947

Department 1

Action by Mary Overton and John Bidleman, a minor, by Mary Overton his guardian ad litem, against the Wenatchee Beebe Orchard Company to recover damages for the death of Mary Overton's daughter and John Bidleman's mother. From the judgment, the plaintiffs appeal.

Affirmed.

Appeal from Superior Court, Chelan County; Fred Kemp, Judge.

Colvin & Williams, of Seattle, and Sam R. Sumner, of Wenatchee, for appellants.

Skeel McKelvy, Henke, Evenson & Uhlmann and A. P. Curry, all of Seattle, for respondent.

MILLARD Justice.

Mary Overton, individually and as guardian ad litem of the minor son of decedent, brought this action to recover for the death of her daughter. The suit is on two causes of action. In the first, plaintiff sought damages on the ground that she was partially dependent upon her daughter; and in the second, as guardian ad litem of the minor son of her deceased daughter. The cause was tried to the court sitting with a jury. At the conclusion of plaintiff's case defendant moved for dismissal of both causes of action. Motion as to the first cause of action was granted and denied as to the second cause of action. At the close of the evidence defendant's motion for a directed verdict was denied. The jury returned a verdict in favor of plaintiff; whereupon defendant moved for judgment notwithstanding the verdict and in the alternative for a new trial. Those motions were granted. The court gave the following reasons for granting the motions: (1) that there was no duty on the part of defendant to construct or maintain a guard rail on its bridge across the Columbia river that would be sufficiently strong to withstand the impact of decedent's automobile; (2) the bridge at the time of the accident was reasonably safe for the ordinary public travel to which it was subject; (3) the proximate cause of the accident was the negligent operation of decedent's automobile; (4) any presumption of due care on the part of decedent was overcome by evidence of her negligence; (5) the court improperly instructed the jury that the decedent was presumed to be exercising due care at the time of the accident.

From the judgment entered in favor of the defendant in both causes of action plaintiff appealed. The facts are as follows:

Beryl A. Bidleman, then twenty-three years of age and employed in Seattle, left Seattle December 22, 1944 to spend Christmas with her parents and her three-year-old son, who lived on the Beebe orchard tract on the Douglas county side of the Columbia river across from the Chelan railroad station. Her father was an employee of that company.

On the trip to Wenatchee she was accompanied in an automobile by one Austin Burton, a former college acquaintance, who was going to Wenatchee to spend the holidays with his parents. The two arrived in Wenatchee early in the evening of December 22, 1944, and partook of dinner with the parents of Mr. Burton. The young lady then continued the trip home alone, a distance of about 35 miles.

She returned the next evening, December 23, to the Burton home for a Christmas party in Wenatchee about 8 p.m. The Burtons endeavored to persuade her to stay overnight in Wenatchee and start home the next morning, but in this they were unsuccessful and shortly after midnight she left Wenatchee to return to the home of her parents. From Wenatchee she traveled north on state highway No. 10 on the west side of the Columbia river to Chelan and then to Chelan station to cross the Columbia river over the Beebe bridge, which connected the orchard tract where her parents resided, and the public highway on the Douglas county side of the river to the Chelan county side of the river. She never arrived at her home.

About 10 a.m. December 24, she was found dead in her automobile which, after traveling some 380 feet up the approach of the bridge on the Chelan county side, had broken through the guard railing of the bridge and landed upside down on the ground 41 feet below the floor of the bridge. This bridge was built about twenty-five years ago by respondent to give access from the orchard to Chelan Falls and other communities, and to convey and irrigation pipe to the property. There were no witnesses to the accident. The bridge is a wooden structure, owned and maintained by respondent, and is known as a suspension bridge with trestle approach on the west side. The approach runs about 500 feet to the span. It is made of 3 by 12 inch planking laid crosswise on the bridge with a lane of driveway made of 2 by 12 incy planks laid lengthwise, four of these planks being laid on each side of the center of the bridge deck. There is a space between the two sets of driveway planking and then a space on each side of the floor planking. Then 4 by 4 inch timbers running lengthwise of the bridge are spiked to the floor and next to the 4 by 4 inch timber is a steel irrigation pipe 14 inches in diameter. On the outside of the steel pipe and on both sides of the bridge is the guard rail, which is approximately 4 1/2 feet high. This guard rail is constructed of 4 by 4 inch posts for the uprights which are spaced 10 feet apart and are reinforced by 2 by 4 inch timbers placed at a forty-five degree angle, and three horizontal rails of 2 by 4 inch timbers and a top rail of 2 by 6 inch timber. The bridge is a toll bridge and a bridge tender is on duty during the day from 7:30 a.m. to 8 or 8:30 p.m. Employees of respondent and their families and persons having business with respondent have the privilege of using the bridge without toll. The bridge is open to the public at night without payment of toll. There is a bridge house on the Chelan county, or west, entrance of the bridge, and a sign on the bridge house which reads as follows:

'SLOW

Toll Bridge, fee 50¢

Load limit, 5 Ton gross

One way traffic

15 miles per hr.

Cars 300 ft. apart.'

There is a like sign at the Douglas county, or east, entrance, and the third sign on the turnout of the bridge itself.

The only evidence of what occurred is the car tracks caused by decedent's automobile on the frost. The bridge tender, who discovered the accident the morning of December 24, immediately called a deputy sheriff and a state highway patrolman, who made an investigation. The deputy sheriff took measurements of marks on the irrigation pipe and the state patrolman took measurements of tire marks and markings on the pipe. The state patrolman testified that the tire marks of decedent's automobile showed she left the 2 by 12 inch horizontal planking at a distance of 357 feet from the bridge portal and traveled 36 feet off the planking at an angle to the south and toward the irrigation pipe, then climbed the 4 by 4 inch timber along the side of the pipe a couple of feet, went over the pipe and traveled along the pipe, scraping the pipe for a distance of 18 feet, then the car turned to the right and south and plunged over the side through the guard rail and fell to the ground below the bridge.

The other investigator testified there were three distinct markings on the pipe, the first at a place 338 feet from the beginning of the bridge, then 28 feet farther up on the pipe toward the Douglas county side was another tire mark, and 20 feet beyond was a dent in the pipe where the car went over the side of the bridge. There is no evidence of any skid marks. The pipe had fasteners or round bands with nuts on them which could be tightened. From the point where the wheels of the car first hit the pipe, to the place where it left the bridge, was from 39 to 48 feet. Two sections of guard rail were torn from their place on the bridge at the point where the car went through the guard rail. The railing adjacent to the point where the automobile went through the guard rail was in bad condition; nails were loose in the ends of the boards and the boards were warped. The boards had not been painted for many years.

It is appellant's theory that the failure of respondent to use ordinary or reasonable care in the construction and maintenance of guard rails on the bridge was the proximate cause of the death of the decedent and that the requirement of ordinary care means the construction and maintenance of an adequate guard rail as well as other parts of the bridge that would afford protection commensurate with the danger involved.

Unquestionably respondent's bridge is a part of the state highway and it was the duty of respondent to maintain that bridge in a reasonably safe condition for ordinary traffic. The duty of respondent is no greater than that of a governmental agency in maintaining a public highway and that duty is to maintain the highway in a reasonably safe condition for ordinary traffic. Berglund v. Spokane County, 4 Wash.2d 309, 103 P.2d 355.

Respondent is not an insurer of the personal safety of every one who uses its bridge. It does not owe any duty to keep that bridge in such repair that accidents can not possibly happen upon it. Its duty is the same as the duty of a municipal corporation in the maintenance of its sidewalks; that is, its duty is done when it keeps the bridge reasonably safe for use--safe for those who use the bridge in the exercise of ordinary care. Grass v. Seattle, 100 Wash. 542, 171 P. 533.

Respondent's duty to maintain a guard rail on its bridge was no greater than that of municipal corporations or counties on public highways. A municipal corporation may be chargeable with negligence in failure to maintain guard rails, barriers or warning signs if the situation along a highway is inherently dangerous or of such character as to mislead a traveler exercising reasonable care. Barton v. King County...