Sherman v. City of Seattle

356 P.2d 316, 57 Wash. 2d 233, 1960 Wash. LEXIS 468
CourtWashington Supreme Court
DecidedOctober 27, 1960
Docket35018
StatusPublished
Cited by28 cases

This text of 356 P.2d 316 (Sherman v. City of Seattle) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sherman v. City of Seattle, 356 P.2d 316, 57 Wash. 2d 233, 1960 Wash. LEXIS 468 (Wash. 1960).

Opinions

Donworth, J.

This action was brought on behalf of Gregory Sherman, a three-year-old child (hereinafter referred to as respondent), to recover damages for injuries sustained by him on appellant’s premises at the Diablo dam site located in the mountains in Whatcom county.

The nature of the action is more fully described in the complaint, which alleges, in part:

“HI. That at the power project maintained by the defendant at Diablo on the Skagit River in the State of Washington, the defendant city maintains housing and other premises in the vicinity of the power house for the use of employees of the City on the project, and their families, and the public; that the minor plaintiff was at all times living on said power project premises; that also on said premises the City of Seattle maintains a lift apparatus which is a platform on wheels running on rails extending up a hill from a road at the foot of the hill to a machinery house at the top of the hill, which is operated by the means of cables and by an operator stationed in the machinery house. That on or about the 14th day of April, 1957, at about 1:20 o’clock P.M., the claimant was in close proximity to one of the rails upon which the lift operates, and at said time the said lift descended and the wheel and lift passed over him causing him injury and damages hereinafter set forth due to the negligence of the defendant as hereinafter set forth.”

[235]*235After setting forth the alleged negligence of defendant in fifteen different particulars, the complaint continues:

“V. That as a result of being run over as aforesaid, the claimant Gregory Sherman sustained the following injuries: his left arm was so severely injured that it had to be amputated; his whole body was shocked and injured, and his nervous system damaged; he was caused extreme pain and suffering, which will continue indefinitely in the future, and will suffer all handicaps that [are] inherent in the loss of the arm, through the rest of his life; that all of his injuries are permanent in nature, and he has suffered permanent disability.”

The prayer of the complaint, which was amended before trial, sought $200,000 in damages.

Appellant, by answer, denied any negligence on its part and affirmatively alleged that respondent was a trespasser.

The case was tried to the court sitting with a jury. Appellant’s motion for a directed verdict at the close of all the testimony was denied. The matter was then submitted to the jury, which returned a verdict in favor of respondent for $74,900. Appellant’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial was denied. Thereafter, the trial court entered judgment upon the verdict and this appeal followed.

Appellant’s seven assignments of error are directed to the denial of its motion for a directed verdict; to the denial of its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial; to certain instructions given; to instructions refused; and to entering a judgment for respondent in the sum of $74,900.

Respondent’s theory of the case is that the “landowner-visitor” rules of liability are inapplicable to the case at bar, and that appellant owed him the duty of exercising reasonable care; that if the “landowner-visitor” rules of liability do apply, then respondent was an invitee; that if respondent was not an invitee, then the attractive nuisance doctrine applies.

Appellant’s defense to the action is twofold: (1) Respondent, as a matter of law, was a trespasser, so that the only duty owed him by appellant was to refrain from will[236]*236fully- or wantonly injuring him. (2) The doctrine of attractive nuisance does not apply here.

The facts surrounding the accident are of vital importance.

All the land in the vicinity of the Diablo dam site is owned by appellant. The streets and other thoroughfares were laid out by appellant, and all the public buildings and houses were located and built by it for occupancy by its employees. These buildings and homes are maintained and controlled exclusively by appellant. The only persons who live in the area are employees of the city light department who are engaged in the operation and maintenance of the Diablo dam and powerhouse. The electricity produced by this plant is transmitted to Seattle for use by the inhabitants thereof. Diablo is in all respects comparable to a company town exclusively owned and controlled by a privately-owned power company.

The multiton lift involved in this action had been used by appellant since 1929 to transport passengers, and freight up and down a 550-foot hill between the “town” and the Diablo dam. This hill has a slope of approximately sixty-nine degrees. The lift consists of a large steel platform with elongated supports on the lower side to make the platform deck level. It operates on wheels which run on three sets of railroad-type tracks. The lift is pulled up the incline by means of cables which wind around a motor-driven drum in the head house located at the top of the tracks. The downward trip is controlled by the motor-driven drum which unwinds the cables so that the descent is at a speed of less than one mile per hour. Thus, the trip would take approximately six minutes.

The lift moves very quietly and its movements are controlled by an operator who sits in the head house and starts or stops it by means of a hand lever. The operator’s view to the bottom of the incline is obstructed by the lift itself until it reaches a point approximately halfway down the incline, and then the operator has a view through the underside of the lift to the bottom of the incline. The evidence discloses that in this instance the operator had more than [237]*237a minute in which to observe respondent’s presence on the track prior to the accident.

The bottom terminus of the lift is immediately adjacent to a public thoroughfare. The community commissary, post office, storage locker, and a waiting station for the bus are located within one hundred feet thereof. The community school playground is less than two hundred feet away.

The evidence establishes that children frequented the area around the bottom of the lift incline.' Mr. Orland Howell, who was the operator of the lift at the time of the accident, testified on direct examination that he had seen children around the bottom terminus of the lift “quite a few times,” and that he kept a lookout for children when operating the lift.

There was no fence or other barrier at the bottom terminus to prevent access to the lift area. There was no braking mechanism on the lift itself or at the bottom of the hill to stop the lift in case of an emergency. Nor was there any warning device on the lift that could be used by passengers to warn the operator of any danger that might arise during the course of its ascent or descent.

Respondent’s father was an employee of appellant. Appellant furnished houses in two areas for its workmen and their families. One group of houses, known as Reflector Bar, was located adjacent to, the bottom of 'the lift. Downstream from the lift, there was located the second group of houses, known as Hollywood, and it was here that respondent lived with his family.

On the day of the accident, respondent went out after lunch to play in his front yard. Apparently, he rode his elder brother’s tricycle from the front yard to a point near the bottom terminus of the lift.

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Bluebook (online)
356 P.2d 316, 57 Wash. 2d 233, 1960 Wash. LEXIS 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherman-v-city-of-seattle-wash-1960.