Zellers v. City of Bellingham

Mount, J. Action for damages on account of personal injuries. The case was tried to the court with a jury on issues made by the pleadings. The jury returned a verdict in favor of the plaintiffs for $2,500. The defendant has appealed. It appears that the city of Bellingham was improving Central avenue, one of the principal streets in the city. This avenue runs north and south. The east side of the avenue, thirty feet in width, had been improved by piling and capping, upon which capping planking had been laid. The west side was being improved in the same manner. The street was being built upon tide lands and necessitated piling, capping, and planking to be laid thereon in order to be improved. The contractor for the city used a pile driver in doing the work. This pile driver was built upon a framework upon which was also situated a donkey engine which operated the pile driver, and which was used for the purpose of moving the pile driver. The easterly side of the street, which had been planked to the width of about thirty feet, was being used by pedestrians. There were no barricades to prevent pedestrians from using the finished portion of the street. In doing the work, it was necessary to move the pile driver from place to place as the — 603 — work progressed. On March 1, 1913, a cable was carried from the pile driver to the east side of the street across the planked portion thereof, and fastened to a telephone pole for the purpose of moving the pile driver. The testimony on behalf of the plaintiffs tended to show that they were upon the street on the day named looking at the work which was being done. They had gone a little distance away to where a dredger was making a certain fill. They then walked up to where the pile driver was at work. They watched the pile driver for a few minutes. They were standing near the cable which was attached to the telephone pole for the purpose of moving the pile driver. After standing for a few minutes, Mrs. Zellers, seeing that the cable was lying upon the street, spoke to her husband saying that they could then cross the cable, or words to that effect. She testified that, as she was in the act of stepping over the cable, which at that time was lying upon the planking of the street, the engine of the pile driver was suddenly started, the cable was raised, and her foot was caught as she was in the act of' stepping over the cable, and she was thrown upon the roadway and severely injured. Others of her witnesses testified to the same effect. This statement of the occurrence was disputed by the defendant. It contended and produced witnesses to the effect that, at the time the plaintiffs came up to the cable, it was taut; that one end of the cable was fastened to the telephone pole across the completed portion of the street, and about twenty inches above the flooring of the street; that the other end of the cable was fastened around the lower portion of the frame of the pile driver, a little below the surface of the planking to the west of the thirty-foot strip; that it extended at an angle from the pile driver to the telephone pole, and that, at the middle of the completed portion of the street, the taut cable was from eight to fifteen inches above the plank roadway; that Mrs. Zellers, while the cable was in this position, attempted to step over the cable, caught her heel — 604 — or foot on it, and fell to the floor; that the person operating the pile driver did not know Mrs. Zellers was about to cross the cable, and did not see her until after she had fallen. This was the principal issue in the case. The court instructed the jury as follows: “You are further instructed that if you find from the evidence by a fair preponderance thereof that at the time the plaintiff, Lillie Zellers, attempted to pass over the cable the same was lying still on the surface of the improved portion of the. street or was then still and near the surface of the street and in such position that a person of reasonable prudence and caution under all the conditions and circumstances, as they then and there existed, would have considered it safe to pass over the cable, and if you further find from the evidence by a fair preponderance thereof that the plaintiff, Lillie Zellers, in the exercise of ordinary care and prudence for her own protection and safety attempted to pass over the cable, while the same was in such position, and that while so attempting to pass over the cable, the defendant, acting by and through the contractor, Sauset, his agents and employees, without warning to said plaintiff, Lillie Zellers, suddenly started up the engine of the pile driver, and drew the cable taut and thereby struck the said plaintiff with the same and raised her up and threw her on the street, and thereby injured her as alleged in the complaint, then and in such case, it would be your duty to find for the plaintiff and against the defendant city.” The court refused to give the following instruction: “You are instructed that before you can find a verdict for the plaintiff in this case you must find, from a fair preponderance of the evidence, that the plaintiff, without any negligence on her part contributing thereto, attempted to step over the cable described in the evidence in this case, while the said cable was lying upon the planking of Central avenue, and that some agent of the defendant city of Belling-ham, with knowledge that she was attempting to step over said cable, or who by the exercise of reasonable diligence should have known from some word or action of the plaintiff, that she was about to step over said cable, started or caused to be started the donkey engine attached to said cable and — 605 — as a result said cable was raised in the air, and the plaintiff was tripped or thrown and injured by the raising of said cable.” It will be noticed that the difference between these two instructions is, that, in the one given, the jury was not told that, before a recovery could be had, it was necessary that the city, or some agent of the city, must have had notice, or in the exercise of ordinary care must have known that Mrs. Zellers was attempting or was about to step over the cable. This was clearly error. Because if the city did not know, or in the exercise of reasonable diligence was not required to know, that the plaintiff Mrs. Zellers was about to step over the cable at the time it was started, there was clearly no negligence on the part of the city. The court should have given the instruction refused, or at least should have modified the instruction given so as to contain this element of notice or knowledge. In the case of Pearson v. Willapa Construction Co., 72 Wash. 487, 130 Pac. 903, which was a case very similar to this one, we said that the plaintiff could not recover, for three reasons: “(1) Appellant was not in a dangerous situation until he stepped over the cable; (2) there is nothing to show that respondent knew, or should have known, that appellant was about to step over the cable; (3) there is nothing to show that respondent knew, or had received any intimation, that appellant was in a dangerous position with regard to the cable when the cable was started. Hence, the basis on which that contention rests — one person negligently exposing himself to danger, the other with knowledge of such fact omitting due care for the purpose of avoiding injury — is here lacking. Appellant could plainly see what was going on; the scraper and moving cable were plainly indicative of their use; and with these facts clearly before him, he chooses his own time to act, with no intimation or knowledge on the part of respondent that he was about to so act.” And so it is in this case. If the cable was lying upon the completed roadway, as the plaintiffs’ evidence tended to — 606 — show, then, in order to show negligence on the part of the agents of the city operating the cable, it was necessary to show that the agent at the time the engine was started knew, or should have known, that the plaintiff Mrs. Zellers was attempting to cross, or was about to cross the cable at that particular time. Otherwise, there was no negligence. A recovery in the case depends upon negligence of the city. It certainly was not negligence for the city to be improving the street by the means employed. It seems to be conceded that the means employed were necessary. The plaintiffs themselves, by their own testimony, knew that the cable was across the street; they knew it was being used for the purpose of moving the pile driver; and they knew that, when the engine was in motion, the cable would be raised above the surface of the street, because they had watched its operation and, a very short time before they attempted to cross, saw its position. It is true that other people, especially pedestrians, were using the street at that time, and that the street was not closed to traffic. But the mere fact that a cable lay' across the street, and was being used at that particular time, was itself a warning of danger, and persons attempting to cross it were assuming the risk, unless those operating the cable knew, or in the exercise of ordinary care should have known, that persons were upon the cable, or about to step over it, or were in a dangerous place at the time it was about to be raised or put into operation. Clearly the only negligence, if there was any negligence at all, was in raising the cable when the plaintiff Mrs. Zellers was in a dangerous position. In order to show negligence, therefore, it was necessary to show that the agents of the city knew, or should have known of her position. The court entirely omitted this element from the instruction, and it was therefore erroneous. It is argued by the respondents that the case of Pearson v. Willapa Construction Co., supra, was in substance overruled by the later case of Lautenschlager v. Seattle, 77 Wash. 12, 137 Pac. 323. That was an entirely different case from — 607 — this. In that case, the negligence consisted in maintaining a temporary sidewalk six inches lower than the cement walk, at a place where the lights cast a shadow upon the permanent walk, so that travelers upon the highway could not see the danger; and no warnings were posted near the place to prevent pedestrians from falling upon the walk. The Pearson case, upon which the appellant relies in this case, was not even mentioned in the later case. The appellant insists that its motion for a directed verdict should have been sustained. But we are satisfied that, if the plaintiffs’ evidence is to be believed to the exclusion of the defendant’s evidence, there was a question for the jury to determine whether the accident happened in the way the plaintiffs testified, or in the way the evidence for the defendant tends to show that it happened. If the plaintiffs’ version is the correct one, then the right to recover depends upon the fact whether or not the city or its agents knew, or in the exercise of reasonable caution should have known, that the plaintiff Mrs. Zellers was in the act of stepping over the cable when it was lifted from the street. And that, we think, is a question for the jury. Other errors are assigned in the briefs to the effect that the court erred in refusing to grant a new trial. But from what we have already said, it is apparent that it is not necessary to discuss these questions, because a new trial must be granted for the error noticed. The judgment is therefore reversed, and the cause remanded for further proceedings. Crow, Main, and Ellis, JJ., concur.