Wood v. City of Seattle, 35359
| Decision Date | 29 December 1960 |
| Docket Number | No. 35359,35359 |
| Court | Washington Supreme Court |
| Parties | Paul D. WOOD, Appellant, v. CITY OF SEATTLE, a municipal corporation, Respondent. |
Koenigsberg & Hepfer, Seattle, for appellant.
A. C. Van Soelen, William W. Brown, Seattle, for respondent.
In 1946, Paul D. Wood suffered and injury which resulted in the amputation of his right leg. He became experienced in the use of crutches. April 2, 1957, at approximately 7:10 p. m., he boarded a city bus without assistance, and sat behind the driver. Upon arriving at his destination, and being the only remaining passenger in the bus, he walked with the aid of his crutches to the platform above the front steps. He stopped, looked at the bus driver, then looked down at the steps, saw and recognized their condition, descended one step, and, as he put his weight on the crutches to descend to the second step, the right crutch slipped on the wet rubber matting. He fell to the sidewalk and was injured.
Wood commenced this action against the city to recover damages for his injuries, contending that the city was negligent 'In failing to repair or maintain the steps of said but in proper condition, in that the ribbed rubber was worn smooth, making the same dangerous,' and that the operator of the city's but was negligent 'In failing to offer and render assistance to the plaintiff in descending the said steps,' which acts of negligence were the direct and proximate cause of his injury.
The city's answer denied the allegations of negligence, and alleged that the plaintiff was guilty of contributory negligence, inter alia, in failing to use the steps of the bus properly while alighting, in jumping from the bus to the sidewalk, and in 'Failing to request assistance in getting off the bus.' The reply denied the allegations of contributory negligence.
The defendant moved for summary judgment and for dismissal of the plaintiff's complaint with prejudice.
In ruling on these motions, the court considered the pleadings and, without objection by either party, the testimony of Paul D. Wood given at a former trial, together with his affidavit, the depositions of three witnesses, and certain exhibits. The court held that
'* * * admitting and assuming that the defendant was guilty of negligence as a matter of law, because of failure to offer to assist the plaintiff in disembarking from the bus, and assuming that such assistance would have been accepted and would have prevented the plaintiff from falling and injuring himself, and assuming that the steps were worn and wet, the court concludes that the plaintiff was contributorily negligent as a matter of law, or assumed the risk and knowing of the danger proceeded to invite, create and proceed into the very thing of which he now complains, and that there remains no genuine issue as to any material fact and that the defendant City of Seattle, the moving party, is entitled to judgment as a matter of law; * * *'
From a judgment of dismissal with prejudice, the plaintiff has appealed.
Appellant's three assignments of error all relate to the court's determination that the appellant was guilty of contributory negligence, as a matter of law.
Whether a passenger's conduct in alighting from a bus, under the circumstances then present, constitutes contributory negligence is determined by the test of the conduct which would be exercised by a reasonably prudent man acting under similar circumstances and conditions. Heinlen v. Martin Miller Orchards, 1952, 40 Wash.2d 356, 242 P.2d 1054. What a passenger's conduct is or was at a given time is factual. Whether a person's conduct has met the reasonably prudent man test is a question of fact for determination by the jury, unless reasonable minds could not differ in their conclusions. West v. Mount Vernon Sand & Gravel, Inc., Wash. 1960, 355 P.2d 795, and case cited.
Appellant's testimony relative to his conduct at the time in question was as follows:
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