Allen v. Fish

• Decision Date: 25 June 1964
• Docket Number: No. 36931
• Citation: Allen v. Fish, 393 P.2d 621, 64 Wn.2d 665 (Wash. 1964)
• Court: Washington Supreme Court
• Parties: Albert ALLEN, Respondent, v. John Wesley FISH, Virginia Blagen Fish, Clarence Blagen Fish and Virginia Caroline Fish, partners doing business under the firm name and style of Blagen Mill Co., Appellants.

Page 665

64 Wn.2d 665

393 P.2d 621

Albert ALLEN, Respondent, v. John Wesley FISH, Virginia Blagen Fish, Clarence Blagen Fish and Virginia Caroline Fish, partners doing business under the firm name and style of Blagen Mill Co., Appellants.

No. 36931.

Supreme Court of Washington, Department 2.

June 25, 1964.

Parker & Parker, Aberdeen, for appellants.

Gladys Phillips, Aberdeen, for respondent.

DONWORTH, Judge.

A judgment was entered in the trial court upon the jury's verdict in favor of plaintiff. From that judgment, defendants appeal.

At the time of the accident in question, appellants were copartners operating a sawmill and chipping plant in Hoquiam, where logs were converted into chips for the manufacture of pulp. Respondent, as a one-man logging operator, bought stumpage, felled trees, bucked them into logs, yarded and loaded the logs on his truck, and sold and delivered them to various mills.

June 22, 1960, respondent delivered a truckload of 40 to 50 small logs, approximately 16 feet long and from 5 to 8 inches in diameter, to appellants' chipping plant, as he had done on previous occasions. The load was first scaled to determine the number of cords on the truck, then respondent backed the truck between two guide logs in front of a crane and grapple so that the load could be removed from the truck. The grapple consisted of two hooked arms that could be opened and closed around the logs by the crane operator as he removed the logs from the truck. After the truck was stopped, respondent removed the binder cables that held the load, thus leaving only the truck stakes to hold the logs. Respondent then stepped back to a position approximately 35 feet ahead, and to the left, of his truck. The crane operator took off one load of logs with the grapple, dropping two logs before they reached the stock pile next to the crane. Respondent then returned to his truck to check his binder cables because one had hung up on the load. Thereafter, he resumed his former position in front, and to the left, of the truck.

The testimony is in direct conflict on the issue of how respondent received his injury. Appellants urge that there is no evidence to support a finding of negligence on their part. We agree that the evidence is conflicting on the issue, but we think the evidence is sufficient to support the jury's conclusion. In Schorzman v. Brown, 64 Wash.Dec.2d--, 391 P.2d 987 (1964), we said:

'When appellant's evidence is considered with the foregoing cases in mind, it cannot be characterized as overwhelming, but it is substantial (i. e. more than a scintilla), and since the evidence was conflicting upon the principal issue, we think the jury could find that there existed a steering defect of which appellant should have been warned by his employer. In such a situation, once the jury has reached its verdict, any inquiry by the court is foreclosed, unless, as a matter of law, the court can say there is no competent evidence or reasonable inference therefrom to support the jury's finding in favor of the non-moving party. See, also, Grange v. Finlay, 58 Wash.2d 528, 364 P.2d 234 (1961).'

That case involved the granting of a judgment n. o. v., but we think the same reasoning is applicable to the position taken by appellants in this case.

Respondent testified that, when the grapple picked up the third load of logs, some of the logs dropped back on the truck, and, as the grapple cleared the edge of the truck, two more logs fell and struck a small pole lying on the ground, near which he was standing; the pole flew up, struck him on the right leg, and caused him to fall. Respondent then testified that his leg was broken either when he fell or when he was struck by the pole.

The testimony of appellants' witnesses supports respondent's version of the accident in several material respects, except as to the proximate cause of respondent's broken leg. The principal conflict is what was the actual cause of respondent's broken leg. The crane operator did not notice respondent until he had finished unloading the truck. He testified that no logs fell on the left side of the truck in the area where respondent was standing. Another employee of appellants stated he did not see the accident, but, immediately thereafter, when he responded to respondent's calls, he observed a log approximately 8 inches in diameter and from 30 to 40 inches long near where respondent fell. Another employee testified that he looked up, on hearing the logs fall from the grapple, to see respondent fall backward. He did not see anything strike respondent, and later saw only a piece of lumber about two feet long near where respondent fell.

While the evidence supports respondent's claim that the grapple dropped some logs just prior to his injury, only he was able to supply a direct connection between the logs dropping from the grapple and his broken leg. It was for the jury to determine the credibility of the various witnesses. As stated above, we think there is sufficient evidence on the vital factual issue to support the jury's verdict.

The only expert testimony as to the proper operation of the crane and grapple was by a former safety inspector for the Department of Labor and Industries who was called by respondent and who stated that the grapple should be closed around the logs (which it was not in this instance) when a load is being moved. The crane operator testified that it would take too long to unload a truck if the grapple were to be closed completely each time it was used.

After a consideration of the record as summarized above, we are of the opinion that there was substantial evidence from which the jury could have found that the crane operator was negligent in the manner in which he unloaded the logs from the truck, and that appellants' negligence was the proximate cause of respondent's injury. Therefore, we think that the trial court did not err in denying appellants' several challenges to the sufficiency of respondent's evidence.

Appellants further claim the trial court erred in not holding that respondent was contributorially negligent as a matter of law, and that the doctrine of volenti non fit injuria applies to this case. As we said in Boley v. Larson, 62 Wash.2d 959, 963, 385 P.2d 326 (1964):

'Respondents have argued that the judgment of the trial court should be affirmed on the basis that Boley was 'contributorily' negligent as a matter of law. This court has said many times that in only the clearest of cases is it justified in determining that contributory negligence exists as a matter of law. O'Brien v. Seattle (1958), 52 Wash.2d 543, 327 P.2d 433. A condition precedent for such a determination is a conclusion that reasonable minds could not have differed in their interpretation of the factual pattern. Owens v. Young (1961), 59 Wash.2d 30, 365 P.2d 774.'

The jury was correctly instructed on both these issues, and we think...