Turner v. City of Tacoma

• Decision Date: 30 December 1967
• Docket Number: No. 39004,39004
• Citation: 72 Wn.2d 1029,435 P.2d 927
• Parties: Marion W. TURNER, as Guardian ad Litem for Carolyn Turner, a minor, Appellant, v. CIY OF TACOMA, Respondent/Cross-Appellant, and James L. Garvin and Zelma Garvin, his wife, Respondents.
• Court: Washington Supreme Court

Page 1029

72 Wn.2d 1029

435 P.2d 927

Marion W. TURNER, as Guardian ad Litem for Carolyn Turner, a minor, Appellant, v. CIY OF TACOMA, Respondent/Cross-Appellant and James L. Garvin and Zelma Garvin, his wife, Respondents.

No. 39004.

Supreme Court of Washington, Department 2.

Dec. 30, 1967.

Jacobs, Steiner & Smith, Edmund F. Jacobs, Puyallup, for appellant.

Marshall McCormick, City Atty., Robert R. Hamilton and John J. Majeres, Stubbs, Batali, Combs & Small, Jerry Combs, Tacoma, for respondents.

HILL, Judge.

This is a personal-injury action by a guardian ad litem for an injured child. ¹ The cause of the injury is definitely established; the extent of the injury is not material in the present status of the case.

This appeal, on behalf of the injured child, is from a judgment of dismissal after a verdict for the defendants based on a special finding that the child was contributorily negligent.

The Coliseum Building, at the southwest corner of Market Street and South 13th Avenue, Tacoma, was constructed in 1926. It faces Market Street. South 13th, along the south side of the building, has a steep upward grade from Market Street. At the time the Coliseum Building was built, or very shortly thereafter, a fire escape in the form of a stairway 4 feet in width was attached firmly to the south side of the building, extending from its third floor to South 13th, where the bottom of the stairway was embedded in the concrete sidewalk. This, of course, constituted a complete obstruction across 4 feet of the 11-foot sidewalk, which continues to this day. We are making a picture of the south side of the building a part of the opinion for illustrative purposes.

It is undisputed that on October 23, 1964, at about 5:30 p.m. (daylight saving time), ² Carolyn Turner, a 13-year-old girl, accompanied by her brother, was walking up South 13th along the south side of the Coliseum Building. She ran into the fire escape, was knocked to the pavement and sustained injuries. In dispute is the amount of fog and the extent of visibility at the place of the accident; there is also a question as to whether Carolyn was conducting herself as a reasonably prudent person of her age. These were questions for the jury on the evidence presented, and further reference will be made to them.

We are agreed with the plaintiff that the trial court should have instructed the jury that the defendants--city of Tacoma and James L. Garvin and Zelma Garvin, his wife, as the owners of the building--were negligent as a matter of law.

The city, in its brief, concedes that

(T)he fire escape in question was in direct conflict with both State and City code. Inasmuch as the fire escape came down and obstructed the sidewalk, it was in violation of the State Code (RCW 7.48.140(4)). Furthermore, it was in violation of the City Code then in effect, ³ Ordinance No. 2239, Sec. 3.

The existence of the fire escape was at all times a violation of state law. ⁴

The trial court did instruct:

(T)hat the violation of a statute or ordinance is negligence in and of itself, and will render a defendant liable for damages if such violation proximately caused the injury complained of. (Instruction No. 13A)

The instruction is a correct statement of the law, but there can be no doubt that the negligence of the Garvins in maintaining a fire escape obstructing 4 feet of the sidewalk was a proximate cause of the plaintiff's injuries; nor can it be questioned that the city, with full knowledge of the existence of the obstruction, took no steps to abate it. The fact that the obstruction had continued for 38 years subtracts nothing from, but rather adds to, the negligence of the city in failing to perform the duty it owed to those using its sidewalk. That negligence was clearly a proximate cause of the injury.

However, the defendants, even though negligent, were entitled to a judgment of dismissal, if Carolyn Turner was contributorily negligent; and they insist that she was negligent as a matter of law because she walked directly into the fire escape, which was there for all to see.

The plaintiff urges that the jury could have found that at 5:30 p.m. (daylight saving time), on October 23, 1964, it was getting quite dark and foggy; that in going up the hill on South 13th Carolyn had been looking in the tavern windows (as she surely had a right to do), and was intrigued by the unusual sight (to her childish eyes) of ladies in a tavern. With her attention thus distracted and without looking straight ahead, she walked into the fire escape. It was painted white to a height of 7 feet which, it is arguable, made it more difficult to see in the fog.

Under all the circumstances, balancing the duty of the city to keep its sidewalks clear of obstructions (Owens v. Seattle, 49 Wash.2d 187, 299 P.2d 560, 61 A.L.R.2d 417 (1956); Hewitt v. Seattle, 62 Wash. 377, 113 P. 1084 (1911); Mischke v. City of Seattle, 26 Wash. 616, 67 P. 357 (1901); Saylor v. City of Montesano, 11 Wash. 328, 39 P. 653 (1895)) against the duty of the pedestrian to exercise reasonable care for her own safety, reasonable men could arrive at different conclusions as to whether Carolyn Turner was contributorily negligent, and the trial court properly submitted that issue to the jury (Hines v. Neuner, 42 Wash.2d 116, 253 P.2d 945 (1953); Smith v. Manning's Inc., 13 Wash.2d 573, 126 P.2d 44 (1942); Scott v. Pacific Power & Light Co., 178 Wash. 647, 35 P.2d 749 (1934).)

But the defendants point out that the jury did answer that precise question--in response to an interrogatory it found that Carolyn Turner was contributorily negligent and that such negligence was a proximate cause of her injuries.

That would dispose of the matter, if the jury was properly instructed on that issue; whether it was so instructed becomes the decisive issue on this appeal.

The court properly instructed the jury as to negligence and contributory negligence in instruction No. 2; and a special instruction was given as to a minor plaintiff's contributory negligence, which was as follows In considering the alleged contributory negligence of the minor plaintiff, you are instructed that it is the duty of such a minor to exercise the same care that a reasonably prudent minor of the same age, intelligence and experience would exercise under the same or similar circumstances. If he fails to do so and such failure proximately contributes to his injuries, then he would be guilty of contributory negligence and could not recover. (Instruction No. 15)

While we seek to avoid the phrase 'guilty of' contributory negligence, we would have considered that the jury had been properly instructed with reference to contributory negligence had the instructions stopped there. Unfortunately, the court gave instruction No. 16:

You are instructed that a person cannot cast the entire burden of his or her protection upon another and that everyone owes a duty to himself or herself in that respect. One must use his or her own intellects, senses and faculties for his or her own protection. The law does not permit a person to close his or her eyes to danger and then if he or she is injured as a result of such danger to seek remedy and damages against another.

If you find from a preponderance of the evidence that the plaintiff failed to use reasonable care for her own protection then she was negligent, and if such failure on her part was one of the causes contributing to the accident, then she was guilty of contributory negligence. A plaintiff guilty of contributory negligence cannot recover damages.

To refer to this as a slanted instruction seems an understatement. It reads more like a jury argument on behalf of the defendants. That we may have used certain language in an opinion does not mean that it can be properly incorporated into a jury instruction. Boley v. Larson, 69 Wash.2d 621, 625, 419 P.2d 579 (1966); Vangemert v. McCalmon, 68 Wash.2d 618, 628, 414 P.2d 617 (1966).

The plaintiff had submitted an equally objectionable instruction containing the rhetorical sentence from one of our opinions:

One has a right to travel upon the street on the darkest night without a lantern, relying upon the performance of their duties by the authorities in keeping the streets in a suitable condition for travel. (Mischke v. Seattle, supra, page 26 Wash. 621, 67 P. page 358)

The trial court properly refused to give the plaintiff's slanted instruction; it should also have refused to give instruction No. 16. The jury had already been adequately instructed on the issue of contributory negligence. It is our view that instruction No. 16 was, under the circumstances of this case, little short of a direction to find contributory negligence on the part of Carolyn Turner. The case must be remanded to the superior court for a new trial under proper instructions.

We have heretofore indicated that the negligence of the city and the Garvins is established as a matter of law, and the only issue of liability on a retrial is as to the contributory negligence of Carolyn Turner.

We turn now to the errors claimed with reference to matters which might recur on a retrial.

The trial court admitted evidence of former accidents caused by physical contact with the fire escape for the limited purpose of showing notice to the defendants of prior accidents.

We agree that, contrary to plaintiff's contention, such evidence is not ordinarily admissible to show negligence. Tyler v. Pierce County, 188 Wash. 229, 62 P.2d 32 (1936).

We do not regard the case of Porter v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 41 Wash.2d 836, 252 P.2d 306 (1953), relied upon by the plaintiff, as holding to...