Anderson v. Gailey

• Citation: 555 P.2d 144,97 Idaho 813
• Decision Date: 08 October 1976
• Docket Number: No. 11902,11902
• Parties: Martin ANDERSON and Bernice Boyer, Plaintiffs-Appellants, v. George GAILEY, Defendant-Respondent.
• Court: United States State Supreme Court of Idaho

Page 144

555 P.2d 144

97 Idaho 813

Martin ANDERSON and Bernice Boyer, Plaintiffs-Appellants, v. George GAILEY, Defendant-Respondent.

No. 11902.

Supreme Court of Idaho.

Oct. 8, 1976.

James Annest, of Annest & Anderson, Burley, for plaintiffs-appellants.

Robert C. Paine, of Parry, Robertson, Daly & Larson, Twin Falls, for defendant-respondent.

BAKES, Justice.

This is a wrongful death action brought by the plaintiff appellants Martin Anderson and Bernice Boyer in which they alleged that their son, the decedent Richard Anderson, died as a result of the reckless and negligent conduct of the defendant respondent George Gailey. It was uncontested that Richard Anderson died while he was in a 285-foot deep drill shaft that Gailey was digging as an irrigation well and that Gailey had engaged Anderson to descend into the drill shaft to make repairs to Gailey's broken equipment at the bottom of the shaft. The trial centered upon three principal sets of issues: (1) the jurisdictional question of whether Anderson's working agreement with Gailey was within the scope of the Workmen's Compensation Act, which determined whether the plaintiffs could bring this wrongful death action in a court rather than present a workmen's compensation claim before the Industrial

[97 Idaho 817] Commission, (2) the questions under tort law of what duty Gailey owed Anderson and whether he had breached that duty to Anderson and thereby contributed to Anderson's death, and (3) whether Anderson had negligently contributed to his own death or had assumed the risk involved. The jury returned a general verdict denying recovery, and the court entered judgment on the verdict. The plaintiffs appealed. Because we hold that the jury was improperly instructed concerning the duty of care that Gailey owed Anderson and because the special verdict form does not indicate whether the jury's verdict was a result of their resolution of the jurisdictional question adversely to the plaintiffs or whether the misinstruction upon the matter of duty of care might have contributed to the verdict, we must reverse and remand for new trial.

THE EVIDENCE INTRODUCED AT TRIAL.

The evidence introduced at trial upon the matters described in this and the following paragraph was uncontradicted. Gailey, who was in the well drilling business, had begun drilling the hold in question in February of 1973. Because he was drilling through extremely hard rock below the 60-foot level, he had found it necessary to dynamite the hold every 2 1/2 to 3 feet in order to drill. On April 5 of that year, the day after he had last dynamited in the hold, he had broken his drill bit at approximately the 285-foot level. Gailey was unable to 'fish' the broken drill bit from the hold and decided that it would be necessary to send someone into the hold to repair the bit so that it could be removed and he could continue drilling. In the last week of April, Gailey first attempted to repair the bit by lowering someone into the hold to weld it. Victor Chittock, the man who agreed to attempt the repair, was lowered to approximately the 110-foot level of the hold, but complained that he was unable to breathe and that he smelled fumes and demanded to be raised. Chittock had neither made nor attempted any repairs.

Gailey then left word with a number of people that he was looking for someone else to attempt the repairs. A common acquaintance told Anderson about the situation, apparently because he believed Anderson might be interested in attempting the repair for the $200 Gailey had offered. Richard Anderson agreed to attempt to repair the drill bit after discussing the matter with Gailey. Between that time and May 5, the day he was lowered into the hole, Anderson selected breathing apparatus to take with him when he entered the hold. Sometime during the late morning or early afternoon hours of May 5, Richard Anderson descended into the hole. He was lowered upon a 'bucket' which gave him a flat surface to stand upon and which was raised or lowered by machinery operated by George Gailey. He wore no shoulder harness or other apparatus connected to a line to the surface that would allow him to be raised from the hole in the event the 'bucket' could not be raised to the surface.

According to Gailey's testimony, Anderson had told him that in the Navy he had become familiar with air equipment and had learned to work in confined areas. The welding supplier who furnished Anderson's air mask testified that Anderson had told him the repairs would present 'no problem' because he had had similar experience in the Navy and knew what he was doing. The supplier also testified that Anderson told him he would turn his breathing apparatus on when he encountered foul air, but the supplier had warned him that then it would be too late. On the other hand, the plaintiff Martin Anderson, Richard's father, testified that as far as he knew Richard had never had any welding training and had never worked with air tanks in the Navy or anywhere else.

There were only three people at the site when Anderson entered the hole-Anderson, Gailey and Larry Martin, one of Gailey's The rescue attempt to raise Anderson from the hold was not completed until the early morning hours of the following day. The persons involved in the rescue operation gave the following account. Gailey had been unable to raise the bucket from the hold when he initially attempted to do so, apparently because it had become wedged in the shaft. Victor Chittock was twice lowered into the hole in an attempt to free Anderson, and in his second descent was lowered to approximately the 190- or 200-foot level. From there he was unable to tell whether Anderson was still alive. He had difficulty breathing and asked to be raised, but lost consciousness at approximately the 60-foot level as he was being pulled to the surface.

employees. In their testimony at trial, Gailey and martin gave the following account of what happened when Anderson attempted to make the repair. Before Anderson entered the hold they had asked him to check his breathing equipment, which he did, and he had turned on the air tank and indicated that it was working. Gailey had offered to rig a shoulder harness by which Anderson could be raised and lowered independently of the bucket, but Anderson had declined, saying that he would not be able to weld with his arm and shoulder movements restrained by a harness. Gailey operated the well drilling equipment that lowered Anderson into the hold while Martin stood above the hold and maintained contact with Anderson by walkie-talkie. Martin spoke to Anderson while Anderson was roughly halfway to the bottom and again when Anderson reached the bottom of the hold. When Anderson reached the bottom, he told Martin he would not talk again until he had completed welding the broken bit. Shortly thereafter there were two flashes of light from the hold, then silence and no further activity.

After that, a hose from an air compressor was lowered to the bottom of the well and the hole was thoroughly ventilated by air blown by the compressor. The rescuers then lowered Roland Etter to a depth in the hole a few feet above Anderson. Etter could not tell whether Anderson was alive or dead, but saw that the 'bucket' upon which Anderson was resting was wedged into the uneven surface of the side of the hold and decided that in the constricted working area he would be unable to loosen it. After Etter told the rescuers what he had seen, they decided to continue the effort to raise the bucket to bring Anderson to the surface. The well drilling equipment encountered considerable difficulty in raising the bucket and Anderson's body to the surface, stalling out and dying half a dozen times, apparently because the bucket or Anderson's body was catching upon the rough surfaces of the shaft and placing considerable strain upon the mechanism.

When the bucket reached the surface, a sheriff's deputy detached the air tank that Anderson had taken with him into the hole to determine whether there was air in it. The deputy testified that the tank's valve was closed when he removed it, but when he opened the valve to test the air pressure inside the tank the force of the escaping air ruptured the hose connected to the tank.

By the time his body was raised from the hold, at least twelve hours and possibly as many as sixteen hours after he had entered it, Anderson was dead. There was no immediate autopsy, but the body was first taken to a mortuary to be embalmed. The mortician took a blood sample which was later analyzed and found to have a carbon monoxide level of 22%. Anderson's body was also bruised, apparently from contact with the wall when he was raised.

In addition to the evidence already described, there was evidence upon the commonness or rarity of sending a person into a drilling hole to repair broken drilling equipment; there was evidence upon the question of whether it was Anderson or Gailey who exercised practical control over the selection of the equipment to be used in the attempt to repair the drill bit and of

[97 Idaho 819] the manner in which Anderson would attempt to repair the drill bit; there was evidence introduced upon the care Gailey exercised toward Anderson before Anderson was lowered into the hole, while Anderson was in the hole, and during the rescue attempt, and of the care Anderson took to protect himself; there was evidence introduced upon the likelihood that dangerous fumes from the dynamiting would have lingered in the hole for a month; there was evidence introduced upon the safety of the welding equipment Anderson was using and upon the likelihood of his electrocution while using it or his asphyxiation if he used that equipment in a confined space and did not have an independent source of oxygen; and there was evidence upon the question of whether the likely cause of Anderson's death was by asphyxiation or by electrocution or from battering against the...