Tyler v. Pierce County

• Decision Date: 09 November 1936
• Docket Number: 26398.
• Citation: 62 P.2d 32,188 Wash. 229
• Parties: TYLER et ux. v. PIERCE COUNTY.
• Court: Washington Supreme Court

62 P.2d 32

188 Wash. 229

TYLER et ux. v. PIERCE COUNTY.

No. 26398.

Supreme Court of Washington, En Banc.

November 9, 1936

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Charles A. Tyler and wife against Pierce County, a municipal corporation. From a judgment dismissing the action the plaintiffs appeal.

Affirmed.

R. L Bartling and George F. Hannan, both of Seattle, for appellants.

Harry H. Johnston and John E. Belcher, both of Tacoma, for respondent.

BLAKE Justice.

While going from Orting to Sumner, a truck in which plaintiff Susan Tyler was riding skidded from the road and turned over. Mrs. Tyler sustained injuries for which she seeks to recover damages from Pierce county. At the close of plaintiffs' evidence, defendant interposed a challenge to the sufficiency of the evidence, which the court sustained. From judgment dismissing the action, plaintiffs appeal.

The only question to be determined is whether the county was chargeable with negligence in the maintenance of the highway at the point where the accident occurred.

For some distance on both sides of the point of accident, the highway parallels the tracks of the Buckley branch of the Northern Pacific Railway Company. Between two and three miles north of Orting, the highway runs along the west side of the railroad track. It then makes an abrupt turn right and crosses the track. There it makes an abrupt turn left and proceeds northerly along the east side of the track. The truck in which plaintiff was riding failed to negotiate the right turn. It skidded off the left side of the highway on the west side of the railroad track.

The highway has a bitulithic (black top), smooth surface pavement for a width of about seventeen feet. Outside the pavement are dirt shoulders about four feet in width, which, at the point of accident, slope into a depression three or four feet below the level of the road. The highway was constructed in 1916. Where it turns to cross the railroad track, the curve is 'flat'--the superelevation of the west side of the pavement being only six inches. Two hundred feet south of the curve, there was a sign post, at the top of which was a 'R. R.' crossing sign. Below that was a 'Curve' sign, which was very much obscured by the foliage of undergrowth. A guard rail, consisting, as originally constructed, of ten panels, extended along the outside of the curve. Two or three panels at the end near the railroad track had been broken down some time prior to the accident.

The truck left the highway at a point where the guard rail had been broken out. The accident occurred at 11:30 a.m. Rain had fallen intermittently all morning, and the pavement was wet and slippery. The driver of the truck testified that he started into the curve at a rate of ten to fifteen miles an hour; that on account of the slippery condition of the road the truck began to skid, and he lost all control over it. There is no claim that there was any obstruction above or in the surface of the pavement that contributed to the accident. The charges of negligence are of what may be termed a more fundamental character. They are: (1) That the highway as constructed was inherently dangerous, in that (a) the curve was too 'flat,' and (b) the surface of the pavement could and should have been roughened so as to prevent skidding; (2) that a guard rail or barrier of sufficient strength to prevent vehicles from breaking through should have been maintained; (3) that undergrowth should not have been permitted to obscure the 'Curve' sign.

As to the first charge of negligence in each aspect, this court is committed to a rule contrary to appellants' position. In Davison v. Snohomish County, 149 Wash. 109, 270 P. 422, it was held that the county was not liable in the maintenance of a bridge approach, the deck of which sloped toward the outer edge of a curve. In Gabrielsen v. Seattle, 150 Wash. 157, 272 P. 723, 727, 63 A.L.R. 200, the court said:

'It is common knowledge, also, that rain falling upon the oil and grease deposited upon paved highways increases their slipperiness, and increases the danger of operating automobiles over them.

'But, as these things are known to every operator of an automobile, the courts would not, in the absence of proofs of an unusual condition, permit the operator himself to recover against the public body whose duty it is to keep the highways in repair for an accident arising out of a slippery condition caused by these means; this for the reason, if for no other, that the operator knows the conditions, and in using the streets, so knowing the conditions, takes upon himself the risk of injury arising therefrom.'

A different rule would make the municipality an 'insurer against every accident on its streets--in effect an insurer of the tractability of every team and automobile driven on its streets.' Swain v. Spokane, 94 Wash. 616, 162 P. 991, 993, L.R.A.1917D, 754.

With respect to the second and third charges of negligence, this court has considered the obligation of municipalities to...