Jurgens v. American Legion, Dept. of Wash., Cashmere Post No. 64, Inc.

• Decision Date: 01 October 1969
• Docket Number: No. 25--40275--III,25--40275--III
• Citation: 1 Wn.App. 39,459 P.2d 79
• Court: Washington Court of Appeals
• Parties: Ray JURGENS, Respondent, v. The AMERICAN LEGION, DEPARTMENT OF WASHINGTON, CASHMERE POST NO. 64, INC., a corporation, Appellant.

Page 39

1 Wn.App. 39

459 P.2d 79

Ray JURGENS, Respondent, v. The AMERICAN LEGION, DEPARTMENT OF WASHINGTON, CASHMERE POST NO. 64, INC., a corporation, Appellant.

No. 25--40275--III.

Court of Appeals of Washington, Division 3.

Oct. 1, 1969.

Michael Jeffers, of Hughes, Jeffers & Jeffers, Wenatchee, for appellant.

Frank T. Kuntz of Hamilton, Lynch & Kuntz, Wenatchee, for respondent.

MUNSON, Judge.

Respondent brought an action against appellant for damages due to an injury which he suffered while mowing a baseball field at the request of the appellant. This appeal is taken from a verdict in favor of the respondent.

On July 17, 1966, respondent, pursuant to a request by Claude Clark, manager of appellant's baseball team and supervisor of the field, was mowing a ball field owned by the Town of Cashmere but under the supervision and control of the appellant. While mowing, respondent was struck about the right eye by an object which destroyed his sight in that eye and eventually led to its removal. Although the object which caused the injury was never recovered, the area in which he was mowing contained debris and rocks, which fact was known to appellant through Clark and Blake McDonald, a coach and the person who usually mowed the field. The trial court held both Clark and McDonald to be agents of appellant. It was further admitted by counsel for appellant on oral argument to this court, that whatever the object that injured respondent, it undoubtedly was propelled by the mowing machine into his face. Realizing the dangerous condition caused by the presence of rocks and debris, McDonald always avoided the area in which they lay, which was near the fence line, when he mowed the field. As a result, that area was covered with taller grass than the rest of the field.

Because of the unavailability of McDonald's mower, respondent was asked to use his equipment to perform this task. This mower is a large orchard grass mower pulled by a tractor and is similar to a common rotary lawn mower, only larger. At no time was respondent told of the presence of any rocks or debris on the field, even though, at the time of mowing, Clark was present.

Respondent mowed the field in a back and forth operation. When ball players came onto the outfield, and were not responsive to his request that they wait until he finished mowing, he changed his method of operation. He backed the mower toward the outfield fence so he could mow that area without endangering ball players. It was during this method of operation, while he was looking over his right shoulder watching the mowing operation, that he was injured.

Appellant makes three assignments of error allegedly committed by the trial court in failing to dismiss this action as a matter of law at the conclusion of all the evidence:

1. There was insufficient evidence to prove that appellant's negligence was the proximate cause of the respondent's injury;

2. Respondent voluntarily consented to expose himself to known risk; and

3. Respondent's injury was caused by his own contributory negligence.

There are two classifications of cases in which the question of negligence may be determined by the trial court as a conclusion of law. Elmer v. Vanderford, 74 Wash.Dec.2d 553, 445 P.2d 612 (1968); McQuillan v. Seattle, 10 Wash. 464, 38 P. 1119 (1895). In the McQuillan case the court stated, in part, at p. 466, 38 P., at p. 1120:

The first is where the circumstances of the case are such that the standard of duty is fixed, and the measure of duty defined, by law, and is the same under all circumstances. * * * And the one second is where the facts are undisputed, and but one reasonable inference can be drawn from them. * * * If different results might be honestly reached by different minds, then negligence is not a question of law, but one of fact for the jury.

The elements of actionable negligence are (1) the existence of a duty, (2) a breach thereof, which was a proximate cause of, (3) a resulting injury. Rosendahl v. Lesourd Methodist Church, 68 Wash.2d 180, 182, 412 P.2d 109 (1966); Christensen v. Weyerhaeuser Timber Company, 16 Wash.2d 424, 434, 133 P.2d 797 (1943).

There is no dispute that the respondent was an invitee of the appellant. McKinnon v. Washington Federal Savings and Loan Association, 68 Wash.2d 644, 414 P.2d 773 (1966); Miniken v. Carr, 71 Wash.2d 325, 428 P.2d 716 (1967).

The owner and occupier of the premises has a duty to warn invitees of any dangerous conditions which it knew of, or could have discovered with reasonable inspection, which was not known or discoverable by the invitee using reasonable care for his own protection, I.e., the degree of care which a man of ordinary prudence would exercise under the circumstances. Hemmen v. Clark's Restaurant Enterprises, 72 Wash.2d 690, 695, 434 P.2d 729 (1967); Miniken v. Carr, Supra; McKinnon v. Washington Federal Savings and Loan Association,...