Walters v. City of Seattle

• Decision Date: 17 August 1917
• Docket Number: 13938.
• Citation: 167 P. 124,97 Wash. 657
• Court: Washington Supreme Court
• Parties: WALTERS et ux. v. CITY OF SEATTLE.

167 P. 124

97 Wash. 657

WALTERS et ux. v. CITY OF SEATTLE.

No. 13938.

Supreme Court of Washington

August 17, 1917

Department 2. Appeal from Superior Court, King County; John S. Jurey Judge.

Action by N. R. Walters and wife against the City of Seattle. Judgment for plaintiffs, and defendant appeals. Affirmed.

Hugh M. Caldwell and Frank S. Griffith, both of Seattle, for appellant.

Beeler & Sullivan, of Seattle, for respondents.

HOLCOMB J.

In this action respondents recovered judgment for damages for personal injuries sustained by respondent N. R. Walters as the result of the overturning of his automobile truck, due to the alleged dangerous condition of one of the appellant's streets.

The facts, briefly stated, are as follows: Lake Dell avenue and East Alder street, both within the city of Seattle, form what is commonly known as Lake Dell drive. East Alder street forms the east end of Lake Dell drive, and runs approximately east and west and intersects Erie street and Lakeside avenue. Both of the latter run north and south. Lakeside avenue parallels Lake Washington. Erie street is one block west of Lakeside avenue. Lake Dell drive approaches Lakeside avenue from Thirty-Second Avenue South in a series of curves, turns, and grades, the grades varying from 2 to 12 per cent. East Alder street from Erie street to Lakeside avenue descends at a grade of 12 per cent. Lake Dell drive is the only street or roadway that can be used by commercial vehicles in reaching Leschi Park boat and ferry landing. In November, 1915, the appellant finished the work of planking East Alder street save at the intersection of East Alder street and Lakeside avenue. Lakeside avenue is a graveled and macadamized street. The planking at the intersection point was, according to the contention of the respondent, left broken, rough, and uneven and there was a hole about 50 feet in length, from 6 to 8 inches in depth, and 1 1/2 to 2 feet in width, which, at the time of the accident, was full of water. In order to avoid this hole it was necessary for vehicles driving down East Alder street to turn out of the regular line of travel and drive to the wrong side of the street by turning towards the left, which respondent did. There was a triangular space in the intersection about 27 feet in greatest width, left unmacadamized and unpaved and usually muddy and soft, over which vehicles at this time were unable to pass.

Respondent is a resident of the town of Bellevue, Wash., located upon the east shore of Lake Washington, and there owns and operates a feed store. In the operation of this business he uses a one-ton Ford automobile truck. At the time of the accident he had been driving an automobile about three months. In going to and from Seattle it is customary for residents of Bellevue to use the ferry which has its landing place at Leschi Park in Seattle. In getting to and from this landing it is necessary for trucks to use the Lake Dell drive and Lakeside avenue. It was also customary for Walters to drive his truck to Seattle and purchase merchandise for his store. On December 4, 1915, he made one of these trips. After calling at various wholesale places and making purchases elsewhere, at about 4 p. m. he started down Lake Dell drive. He made the run on the right side of the street without difficulty until he came to the East Alder street section of the drive, at a point a distance of about 230 feet west of Erie street. The territory just west of Erie street for a distance of four or five blocks has considerable elevation, so that the drainage during the rainy season flows towards the east, and this seepage of water constantly keeps the planking on East Alder street wet and slippery, in which condition it was at that time. At this point, to use the respondent's own language:

'I was going down what is known as the Lake Dell drive plank road, and had on a load of feed, and it was pretty slippery, and I held the truck under control all right until I came down to this last steep pitch on East Alder street, and it seemed to be steeper there than any other part of the street, and my brakes failed to hold.'

He further testified that the brakes in the car had been renewed that day and were in good condition, and that they failed to hold because of the slippery condition of the steep descent to the intersection of Lakeside avenue. Walters ran down East Alder street, and at the time he came to the intersection with Lakeside avenue he estimates that he was going at a rate of speed of from 9 to 11 miles an hour. When he came to the last part of the planking, where it was rough, he started to make a turn to run south on Lakeside avenue. His truck tilted to the left and ran on two wheels until it came to the depression or hole, when it tipped over on its left side. He was caught under the truck, and his leg so badly crushed that it was necessary to amputate it.

It would seem well to note in passing that the city of Seattle has not seen fit to introduce evidence in denial of some of the matters brought out in the respondent's evidence. Only two witnesses were called on the part of the city, and they were two police officers, one of whom was the ambulance driver who was sent out to the scene of the accident when it was reported. The only one who seemed to be able to tell anything about what happened was a motorcycle policeman, who testified to having knowledge of the condition of the drive at this place; that he had been down there before on the same afternoon of that accident, and he knew that the hole was there. The statements of this witness would tend to show that the truck could not have been going at a very excessive rate of speed, for the car did not appear to be broken up. It is also to be noted that, as to the question of notice, the city did not heed the requests to repair the street made by the witness Helgeson a few weeks before this accident. It would appear that the city of Seattle, a few weeks prior to the trial of this cause, repaired the driveway at the particular spot in question herein. There was also evidence that other vehicles had overturned at this particular spot, and that a man drove over this same block on East Alder street, and his horses were not able to hold back the wagon.

Appellant requested the court to instruct the jury to return a verdict for it, which was refused. Motion was duly made for a judgment non obstante veredicto, filed before the entering of any judgment, and a motion for a new trial was duly made. Both of these motions were denied.

Appellant gave nine assignments of error on the part of the trial court, grouped under three points.

I. As to point 1. It has long been the rule of this court that, before a court will be justified in taking from the jury the question of contributory negligence, the acts done must be so palpably negligent that there can be no two opinions concerning them. McQuillan v. Seattle, 10 Wash. 464, 38 P. 1119, 45 Am. St. Rep. 799; Traver v. Spokane St. Ry. Co., 25 Wash. 225, 65 P. 284.

The failure to obey a traffic statute or ordinance is not negligence per se unless the complaining party is one for whose benefit the statute or ordinance was enacted. Segerstrom v. Lawrence, 64 Wash. 245, 116 P. 876; Rampon v. Wash. Water Power Co., 162 P. 514, L. R. A. 1917C, 998; Bogdan v. Pappas, 164 P. 208.

The object of a traffic ordinance or statute regulating speed of vehicles at crossings is to protect pedestrians and other users of the streets, and to avoid collisions. Rampon v. Wash. Water Power Co., supra.

In the case of Archibald v. Lincoln County, 50 Wash. 55, 96 P. 831, the court adopts as its view of a correct statement of the law the following instruction, which was approved by the Kansas Court of Appeals in the case of Falls Township v. Stewart, 3 Kan. App. 403, 42 P. 926:

'Knowledge by a person of a defective or dangerous condition of a public highway and the use of it notwithstanding such knowledge are not of themselves negligence. If the necessities of a person's business require him to use a defective or dangerous highway, he may use it notwithstanding he knows its defects and dangers. Such knowledge only requires an increased caution and diligence to avoid injury. In other words, although a person is required to exercise only ordinary care and prudence, yet such care and prudence must be commensurate with the necessities of the case, and maintain a constant level with the dangers of the situation.'

It is not negligence per se to pass over a defective highway when there is no convenient way of going around it. Einseidler v. Whitman County, 22 Wash. 388, 60 P. 1122.

Ordinarily whether a street is safe is a question for the jury, and their finding will not be disturbed unless absolutely unsupported by the evidence. Saylor v. Montesano, 11 Wash. 328, 39 P. 653.

Under the facts here we cannot say that, as a matter of law, the city was not negligent, nor that the respondent was guilty of contributory negligence. Upon respondent's evidence he did all he could be expected to do to avoid the defect in the street crossing. The motion for instructed verdict for the city was therefore properly denied.

II. In the claim of damage presented to the city the negligence of the city in permitting the defective planking, the hole in the intersection of East Alder street and Lakeside avenue and the precipitous grade from Erie street to Lakeside, was set forth. No mention was made of the wet and slippery condition of the steep grade on East Alder street at the time of the accident, and that condition was shown, over objections by appellant, at the trial. It was stated, however, that the grade of the approaching street was precipitous for a distance of one block. The purpose of the ordinance, in...