Wullbrandt v. City of Seattle

• Citation: 84 P.2d 123,196 Wash. 645
• Decision Date: 07 November 1938
• Docket Number: 27253.
• Parties: WULLBRANDT v. CITY OF SEATTLE.
• Court: Washington Supreme Court

84 P.2d 123

196 Wash. 645

WULLBRANDT v. CITY OF SEATTLE.

No. 27253.

Supreme Court of Washington

November 7, 1938

Department 2.

Action by Renee Wullbrandt (also known as Renee Sorenson) against the City of Seattle, for injuries sustained in alighting from a street car in the City of Seattle. From judgment of dismissal rendered upon plaintiff's refusal to plead further after a demurrer had been sustained to the complaint plaintiff appeals.

Affirmed.

Appeal from Superior Court, King County; Malcolm Douglas, judge.

Kennett & Benton, of Seattle, for appellant.

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

MILLARD Justice.

This action was brought to recover for personal injuries plaintiff claims to have suffered, in alighting from a street car in the city of Seattle, as a result of the negligent operation of the car by an employee of the defendant. The appeal is from the judgment of dismissal rendered upon plaintiff's refusal to plead further after a demurrer had been sustained to the complaint.

The allegations of fact admitted by the demurrer to be true, are as follows:

About 4:40 p. m., December 1, 1937, appellant was a passenger on one of respondent's street cars which was proceeding southward on Third avenue which is intersected by Madison street, the course of which is east and west at which intersection appellant intended to depart from the street car on the west side of Third avenue. At this intersection is a waiting or safety zone--the boundaries of which are marked off with metallic convex discs which were placed in the paving by respondent--for intending and departing passengers of respondent's street cars. The discs, which protrude several inches above the surface of the paving, are about twelve inches in diameter and are on the west side of Third avenue, immediately north of the north line of Madison street, parallel to the rails of the street car track and approximately three feet west of the west rail. One of the discs was located approximately on the north line of Madison street and a second disc was located about twenty-five feet north of the first mentioned disc. When appellant went toward the front of the street car to alight at the intersection of Third avenue and Madison street other passengers were in the front of the street car preparing to depart from the car at the same point. Many persons were in the above described waiting zone and they crowded about the entrance of the car intending to board same.

Instead of stopping the car at the 'usual, customary and proper place,' which would have placed the combination entrance and exit of the car between the two discs, located as described above, the operator of the car without warning appellant of the presence of the disc directly in her pathway or that the street car had not stopped at the 'usual, customary and proper place,' stopped the car so that the combination entrance and exit of the car was directly opposite the most northerly of the two metal discs, or about twenty-five feet north of the intersection of Third avenue with Madison street, upon which discs respondent had negligently and carelessly permitted grease and oil to accumulate. When the appellant, after the car stopped, attempted to depart from the car one of the passengers stepped from the car immediately ahead of the appellant. Because of the conditions (persons departing from street car in front of her and intending passengers crowding around the entrance of the car) then existing the appellant did not see the metal disc directly opposite the street car exit. As she '* * * was in the act of leaving said street car stopped in the manner and place aforesaid she, being unable because of the congestion, to see said metal disc stepped upon the same and because of its rounded shape and slippery condition, her foot slipped on the same and she was precipitated suddenly and violently down upon said disc and upon the pavement, severely damaging and injuring her. * * *'

The acts alleged to constitute negligently of respondent are: (1) Respondent maintained safety zone markers in the pavement at the intersection of Third avenue and Madison street and permitted grease and oil to accumulate upon those markers. (2) Respondent, without warning appellant, stopped its street car at other than a regular stopping place for receiving and discharging passengers. (3) Respondent failed to inform appellant of the presence of one of the markers opposite the place of exit from the car and in her pathway three feet from the outside street car rail. (4) Because of the passengers departing ahead of her from the street car and because of the presence of intending passengers about the doorway of the street car, appellant could not see the metal marker upon the greasy surface of which she stepped and slipped as she 'was in the act of leaving' the street car.

In appellant's brief is the statement: 'We wish to make it very plain at the outset that the negligence in this case is not predicated upon the action of the respondent in placing the metal discs in the street.'

In other words, appellant does not contend that the placing and maintenance by respondent of the safety zone markers in the highway constituted negligence. This is in harmony with District of Columbia v. Manning, 57 App.D.C. 156, 18 F.2d 806, 53 A.L.R. 167, in which it was held that if there is no evidence other than the fact of the accident to indicate either that the safety markers placed upon the street were dangerous or that they were so negligently constructed as...