Webb v. City of Seattle

Decision Date16 March 1945
Docket Number29507.
PartiesWEBB et ux. v. CITY OF SEATTLE.
CourtWashington Supreme Court

Department 2.

Action by Harry Webb and Molly Webb, his wife, against the City of Seattle to recover damages for the loss of services and burial expenses of infant son of plaintiffs, who was killed by a school trolley bus. From a judgment for defendant, the plaintiffs appeal.

Judgment reversed, with instructions to grant a new trial.

Appeal from Superior Court, King County; Clay Allen, Judge.

Little Leader, LeSourd & Palmer and Medley & Haugland, all of Seattle, for appellants.

A. C Van Soelen and Arthur Schramm, both of Seattle, for respondent.

SIMPSON Justice.

Plaintiffs instituted action in this case to recover damages for the loss of services and burial expenses of their son, Harry Webb, a minor, age fourteen years, who was killed by a school trolley bus.

In their complaint plaintiffs alleged that the accident which caused the death of their son occurred January 15, 1943, on West Myrtle street near California avenue; that on the day mentioned a city bus, operated by the city of Seattle for the purpose of picking up and transporting school children, was driven south on California avenue and then, without stopping at the bus zone on California avenue, turned west onto Myrtle street and stopped with the bus away from the curb and out onto the street to permit the children to board. It was further alleged that on previous occasions the bus failed to stop at the bus zone to take on school children congregated there for transportation to school and drove beyond the zone around the corner onto Myrtle street, and permitted the children to board the bus while it was standing out in the street; that the previous conduct of the bus driver, in failing to stop in the bus zone and sometimes permitting the children to board the bus in Myrtle street, lured and enticed the children to run alongside and follow the bus in anticipation of boarding it as they had done on previous occasions; that on the morning of January 15, when the driver of the bus failed to stop at the zone and continued on onto Myrtle street, the group of children commenced to run alongside and follow the bus; that the driver operated the bus in such a careless, negligent, and reckless manner that he ran upon the plaintiffs' minor son, knocked him to the ground where he was held under the right front wheel of the bus and sustained injuries of which he died; that the wheel rested on the body of Harry Webb for approximately one-half hour and that had it been promptly removed the boy would not have died.

The charges of negligence are: (1) In failing to stop at the curb in the bus zone and in loading and discharging passengers in Myrtle street; (2) enticing and luring the children on former occasions to run after and follow the bus; (3) failing to keep a proper lookout for the children, including the plaintiffs' minor son, when the bus driver knew, or in the exercise of reasonable care and caution should have known, that the group of children were in a place of danger; (4) stopping the bus in the center of Myrtle street; (5) failing to furnish the children a safe place from which to enter the bus; (6) permitting the bus to remain on top of plaintiffs' minor child for a period of approximately one-half hour; (7) that the bus was defectively equipped in that its brakes were inadequate and in that its reversing equipment was inadequate and ineffective.

Defendant filed its answer, denying all of the allegations of negligence contained in the complaint, and by way of an affirmative defense alleged that the accident was caused by the carelessness and negligence of Harry Webb. A reply put in issue the charge of contributory negligence.

The cause tried to a jury resulted in a judgment for defendant. A motion for judgment notwithstanding the verdict or in the alternative for a new trial was presented and denied. Judgment was thereafter entered upon the verdict. Plaintiffs have appealed.

Their assignments of error are: (1) In taking from the jury the charge of negligence of failing to stop at the established bus zone on California avenue; (2) In giving an instruction on unavoidable accident; (3) in permitting the introduction into evidence of defendant's exhibits 7 and 8; (4) in denying appellants' application to amend their complaint so as to conform to statements contained in exhibits 7 and 8; (5) in denying appellants' motion for a new trial and entering judgment on the verdict.

The questions here presented may be most accurately stated, following a general outline of the facts which are undisputed in the main. California avenue is a paved thoroughfare, forty-eight feet in width, extending in a northerly and southerly direction. The intersecting street, Myrtle street, extends east and west and is fifty-two feet wide, having a paved strip in the center of approximately twenty-six feet. Concrete walks are on each side of the street and avenue. On the west side of California avenue, a few feet north of Myrtle street, there is a 'bus loading zone.' The zone is indicated by a painted strip about thirty feet in length on the street curb.

On the morning of the accident some twenty or thirty school children had gathered on the corner of California avenue and Myrtle street, awaiting the arrival of the school bus. The bus came up to the bus zone as though it would stop, then turned out onto California avenue and commenced to make the turn onto Myrtle street. As it turned out from the loading zone, the children followed it. A number ran alongside, quite close to the front end. During this period of time Harry Webb, who was running close to the front rank of the children, either fell under the right front wheel of the bus or the bus ran onto him. The wheel ran part way onto his chest Before the bus was stopped. Immediately after the driver stopped the bus he alighted and sought some way of backing the bus so that the front wheel would not rest upon the boy. He explained that he could not reverse the bus because there would be an instant Before the reverse would take effect when the bus would roll forward, and he was afraid that if he attempted to reverse the bus would run entirely over Harry Webb. Attempts were made to push the bus backward, but they were unsuccessful. Finally, after the elapse of a considerable period, the bus was backed and the boy taken away. He died the day he was injured.

Appellant claims error on the part of the trial court in the giving of instruction No. 8, which reads:

'Plaintiffs have alleged as one of the acts of negligence on the part of the operator of the defendant's bus that said operator was negligent in failing to stop at the curb in said bus zone at a place of safety provided by the City of Seattle for that purpose. You are instructed that it is not negligence to fail to stop at the curb in a bus zone and you will therefore disregard such allegation of negligence.'

In a study of this particular part of the case we must view the entire situation as it appeared on the morning the boy met his death and, also, take into consideration a habit or course of action brought about and followed by the operators of the city buses. The bus driver sometimes stopped the conveyances at the bus zone to take on school passengers and at other times moved on into Myrtle street, as was done on January 15. These actions brought about a habit among the children of running with and following the bus as it turned into Myrtle street. The habit was dangerous to the children who rode the bus to school. We do not conclude that it was negligence per se for bus drivers to drive past the zone with the intention of loading passengers on Myrtle street, but we do hold that all of the facts relative to the bus zone and the failure to stop there were for the consideration of the jury. The jury could well have found from the evidence that the city, through its employees, had in effect brought into being a dangerous situation which was alluring and attractive to the children who used the bus. The alleged negligence in failing to stop at the bus zone should have been presented to the jury in connection with the evidence relating to the habit of sometimes stopping at the bus zone and of sometimes going around into Myrtle street. In this connection it must be borne in mind that those who convey children to and from school must exercise toward them the highest degree of care consistent with the practical operation of the conveyance. This duty obtains during the time the school passengers are being collected. Phillips v. Hardgrove, 161 Wash. 121, 296 P. 559; Leach v. School District No. 322, 197 Wash. 384, 85 P.2d 666.

The next assignment of error related to the giving of instruction No. 11, which reads: 'You are instructed that if you find from a fair preponderance of the evidence that the death of the deceased was the result of an accident for which you believe neither the deceased nor the defendant was to blame there can be no recovery and your verdict should be for the defendant, The City of Seattle.'

The question of whether an instruction such as above set out should be given depends upon the evidence presented during the trial. Jackson v. Seattle, 15 Wash.2d 505, 131 P.2d 172; Brewer v. Berner, 15 Wash.2d 644, 131 P.2d 940, 943.

In the last case cited the rule was laid down in the following language: 'We hold to the view and are of the opinion that an instruction on unavoidable accident is only authorized when the evidence shows or justifies an inference that an unavoidable accident has occurred as that term has been defined. In other words, facts must be present in the case on the issue of unavoidable accident, and unless they are so...

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