Owens v. City of Seattle

• Decision Date: 28 June 1956
• Docket Number: No. 33604,33604
• Citation: 299 P.2d 560,49 Wn.2d 187,61 A.L.R.2d 417
• Parties: , 61 A.L.R.2d 417 Robert H. OWENS, Respondent, v. CITY OF SEATTLE, a municipal corporation, Appellant.
• Court: Washington Supreme Court

Page 187

49 Wn.2d 187

299 P.2d 560, 61 A.L.R.2d 417

Robert H. OWENS, Respondent, v. CITY OF SEATTLE, a municipal corporation, Appellant.

No. 33604.

Supreme Court of Washington, Department 2.

June 28, 1956.

A. C. Van Soelen, Corp. Counsel, C. C. McCullough, R. H. Siderius, Seattle, for appellant.

Eddleman & Wheeler, William R. Eddleman, James S. Turner, Seattle, for respondent.

HAMLEY, Chief Justice.

Robert H. Owens, while driving on Airport Way in Seattle, was injured when his car struck a pool of water and went out of control. He brought this action against the city, on the alternative theories of negligence and nuisance. Damages in the sum of $69,227.55 were prayed for.

The case went to trial on both causes of action. At the conclusion of plaintiff's case, however, the trial court sustained a demurrer to the cause of action based on nuisance. The jury returned a verdict for Owens in the sum of $24,100.55. Judgment was entered accordingly. The city appeals. Owens, proceeding under Rule 16, Rules on Appeal, 34A Wash.2d 23, as amended effective January 3, 1955, also questions certain rulings of the trial court.

The issues presented on appeal relate to the sufficiency of the evidence to establish liability on the theory of negligence; the admissibility of certain evidence; the giving of several instructions; the failure to give others; and the dismissing of the cause of action based on nuisance.

At the close of all the testimony, the trial court denied a challenge to the sufficiency of the evidence, and later denied a motion for judgment n. o. v. In considering the assignments of error directed to these rulings, we believe the jury was entitled to find the facts to be as follows: The accident occurred about 5:00 p. m., on January 6, 1954. It was dusk, and rain was falling lightly. Owens was driving north, in the easterly lane of Airport Way, a four-lane street. He was not driving in excess of the legal speed limit of thirty-five miles an hour. As he approached the 7,800 block on Airport Way, four or five cars passed him. Immediately afterwards, his vehicle struck a pool of water on the concrete surface of the street.

This pool of water, which was from three to four inches deep, extended for a distance of some two hundred sixty feet. For part of this distance, the water covered the entire surface of the easterly lane in which Owens was driving. At some points, the pool extended several feet into the inside lane of northbound traffic.

Owens, who was watching the road at the time, did not observe the pool of water prior to the time his car struck it. The impact covered the windshield with water, making it impossible for Owens to see. His car went into a spin, swerved across the center line, and collided with an automobile traveling south. After the accident, the city placed barriers and lights to protect other drivers.

A similar accident had occurred at the same time and place four days previously. As in this case, a northbound vehicle hit the pool of water, went out of control, and collided with a car going south. The driver involved in that accident testified that, as the wheels of his car struck the water, his steering wheel was jerked and his car slid into the southbound lane. He further testified that he was unable to see the water until his car had reached the pool.

The city argues that the evidence was insufficient to establish liability on the theory of negligence. The testimony, it is pointed out, did not disclose the existence of holes or ruts in the street, but a depressed area some two hundred sixty feet long and of varying widths and depths. It was the presence of water in this depression which caused Owens' car to go out of control. There was no evidence that the city did any affirmative act which caused the water to gather in this pool. Surface water is a common enemy, the city contends, and where the city has not caused the water to gather, it is not liable for the resulting damage.

The 'common-enemy' doctrine, referred to by appellant, see Wood v. City of Tacoma, 66 Wash. 266, 119 P. 859, pertains to the casting of surface waters on property, and the right of a person to divert those waters. It has no application to the duty of a municipality with respect to the maintenance of its streets as a place for travel. Murphy v. City of Indianapolis, 83 Ind. 76.

A municipality is not an insurer against accident nor a guarantor of the safety of travelers. It is, however, obligated to exercise ordinary care to keep its public ways in a reasonably safe condition for persons using them in a proper manner and exercising due care for their own safety. Berglund v. Spokane County, 4 Wash.2d 309, 103 P.2d 355. Where this duty is not fulfilled, the municipality is negligent, and may be held liable for damages proximately caused by such negligence. Bradshaw v. City of Seattle, 43 Wash.2d 766, 264 P.2d 265, 42 A.L.R.2d 800.

The duty of care to which reference has been made does not require a municipality to maintain streets in ideal traveling condition, nor to guard the traveling public from such normal hazards as small depressions in the surface of the roadway or ordinary puddles of water in the street. But where the depression is so large and extensive, or the accumulated water so wide and deep, as to constitute a real danger not reasonably to be anticipated by users of the street, the municipality has a duty to eliminate the hazard or to warn the public of its presence.

The jury, on the evidence presented in this case, could have found that the depression and accumulated water on Airport Way was of a kind which gave rise to such a duty. If the city had actual or constructive notice of that hazard, the failure of the city to remove the hazard, or warn the traveling public of the danger, constituted negligence, or so the jury could have found.

Without recounting the evidence on the point, we believe it was sufficient to support a jury finding that the city, through its engineering department, had actual prior knowledge of the hazard. The evidence also supports the jury finding that appellant's negligence was a proximate cause of the accident.

The question of contributory negligence was properly submitted to the jury. Traveling in the dusk, with cars passing to his left, Owens' ability to see and appreciate the danger in time to avoid it presented a question of fact. The depth of water cannot usually be perceived from its surface appearance. Traffic conditions may have prevented a last-minute swerve to the left. The experience of...