Blanco v. Sun Ranches

• Decision Date: 19 July 1951
• Docket Number: No. 31599,31599
• Citation: 38 Wn.2d 894,234 P.2d 499
• Court: Washington Supreme Court
• Parties: BLANCO, v. SUN RANCHES, Inc.

Page 894

38 Wn.2d 894

234 P.2d 499

BLANCO, v. SUN RANCHES, Inc.

No. 31599.

Supreme Court of Washington, Department 2.

July 19, 1951.

Rehearing Denied Aug. 29, 1951.

Velikanje & Velikanje, John S. Moore, Jr., all of Yakima, for appellant.

V. O. Nichoson, Gavin and Robinson, Yakima, for respondent.

HAMLEY, Justice.

Lorenzo Blanco brought this action against his employer, Sun Ranches, Inc., to recover damages for injuries sustained when his left hand was caught in the moving gear on a hop-picking and recleaning machine. The cause was tried to a jury. At the conclusion of plaintiff's case, the trial court sustained defendant's challenge to the sufficiency of the evidence and granted defendant's motion for dismissal with prejudice. Judgment was entered accordingly and plaintiff has appealed.

The four questions presented by the assignments of error and respondent's answering brief are: (1) Is the machine in question a 'factory' within the meaning of the factory act? (2) Are the provisions of the factory act which purport to cover operations not connected with a factory valid? (3) Did appellant assume the risk as a matter of law? (4) Was appellant contributorily negligent as a matter of law?

Blanco was about seventy years old at the time of the accident. He was born in Mexico and attended schools there until he was twelve or thirteen years old. He has practically no ability to speak or understand the English language. He moved from Mexico to Texas in 1921, where he worked as a storekeeper. In April, 1943, he moved with his family to the Yakima valley, and found employment as a laborer upon the hop ranches of the area.

During his first several years in the Yakima valley, Blanco performed no work in connection with the operation of hop-picking and recleaning machines. He had, however, observed these machines in operation each harvest season, and saw that they were operated by gears, chains and pulleys which moved and were open and exposed. In 1947, Blanco went to work on respondent's farm. During the hop harvest of that year he worked as a sweeper around and about the hop-picking and recleaning machine on which he was injured the following year. In the 1947 season, however, Blanco was not required to perform the particular task in which he was engaged at the time of his 1948 injury, as described below.

The hop picker and recleaner is a stationary machine of standard design in general use in the Yakima valley. The machine itself, which is located in respondent's hop yard, is about eighty feet long and is covered by a shed roof. The hop vines are cut in the field and laid on racks or trailers and brought to an elevator at the front end of the hop-picking machine. The vines are then lifted from the racks and hooked onto grasper bars which carry them through a series of picking fingers. The hop burrs and leaves, so removed from the vines, fall onto a conveyor belt and are carried to the recleaning mechanism. Here the remaining leaves and broken petals are removed.

The 1948 hop harvest at respondent's farm began on August 25. On that day respondent's foreman assigned Blanco to the job of sweeping up the leaves and stems that fell upon the floor. Blanco was also, for the first time, given the additional duty of scraping off the leaves and stems that fell upon a steel platform on the recleaner. This steel platform was approximately six feet wide and eight feet long, and was located about eight feet above the floor. There was no interpreter present when the foreman directed Blanco to perform this task. The instructions were conveyed by gestures and the foreman's demonstration of how the work was to be performed.

For the purpose of cleaning off the steel platform, Blanco was given a stick, which he said was three feet long, and a portable folding ladder four feet high, which Blanco said he did not use. Unguarded, but readily observable, moving gears and chains were located adjacent to the platform which had to be cleaned. Blanco testified that he knew of the presence of these gears and chains, and knew that they were moving. Whether or not Blanco used the ladder, it was necessary for him to grasp the pipe framework of the machine with his left hand, while using the stick with his right hand to scrape the stems and leaves from the overhead platform.

This cleaning operation had to be performed about once every hour. On August 28, 1948, while engaged in this task, Blanco's gloved left hand came into contact with one of the gears and chains, causing the injuries which gave rise to this cause of action.

It is appellant's contention that the hop picker and recleaner is a 'factory' within the meaning of § 1 of the factory act, Rem.Supp.1943, § 7658, and that Sun Ranches, Inc., having failed to provide guards around the moving gears, violated the safety provisions of that act. If this contention were sustained, it would mean that respondent was negligent as a matter of law. It would also mean that respondent would be deprived of the defense of assumption of risk. Depre v. Pacific Coast Forge Co., 151 Wash. 430 276 P. 89. The trial court held, however, that the machine in question is not a 'factory' within the meaning of that act.

The term 'factory' is not defined in the factory act. In DeHaas v. Cascade Frozen Foods, Inc., 23 Wash.2d 754, 162 P.2d 284, however, this court held that a bean-cleaning machine, operated by a company engaged in the business of buying and freezing foods, was not a 'factory' within the meaning of that act. The power-driven machine there in question was five feet wide, seven feet long, and five feet high. It was placed upon a stationary platform thirty feet wide and sixty feet long, the top of which was about four feet above the ground. In rejecting the contention that this operation constituted a factory, the court said:

'Appellant's next contention, that respondent is liable because it had not complied with the provisions of Rem.Rev.Stat., § 7658, known as the 'factory act,' is without foundation. The act applies only to machinery used in factories, mills, or workshops. Appellant was not engaged in work then in a factory, mill or workshop and for that reason cannot claim protection under the act.

'Any extension of the provisions of the statute to work outside of the places now mentioned in the act is a prerogative of the legislature and not of the courts.' 23 Wash.2d at page 761, 162 P.2d at page 288.

Appellant argues that the hop-picking and recleaning machine here in question constitutes a more complete processing plant than the bean recleaner, and that the DeHaas case is therefore distinguishable. The hop-picking and recleaning machine performs the additional function of picking the hops from the vines. Appellant also states (although this is not supported by the record) that after the hops are cleaned they are transported by conveyor belt to other units where the hops are dried and baled ready for market.

While the operation involved in the instant case is thus more complete than that involved in the DeHaas case, the two operations are alike in that agricultural products are dealt with in their natural state without any processing which changes the character of the original product. We do not believe the two cases can be distinguished on the basis suggested.

Appellant also argues that, if the DeHaas case be considered as controlling, then it ought to be overruled, as the court there did not adequately consider the facts and the authorities bearing upon the question. In support of this view there is cited a broad definition of the term 'factory,' to be found in 55 C.J.S. Manufactures, § 1, page 676, and a number of decisions where the particular operation there under consideration was held to be a factory.

None of the cited cases involved farm machinery of any kind or character. The decision in seven of these cases was based upon particular statutory definitions of the term 'factory' or 'manufacturing establishment.' The two cases cited by appellant which did not involve statutory definitions of the term are Thomas v. Burt, 112 Minn. 360, 128 N.W. 297, and Casey v. Barber Asphalt Paving Co., 9 Cir., 202 F. 1, 6. In the Thomas case it was held that an employee repairing a gas engine and pumping machinery in a detached building at a railroad yard was within the protection of the factory act. The court held that, although the engine and pump-house were not actually a factory, they were in the same class. In the Casey case it was held by the ninth circuit court of appeals that a mobile asphalt paving machine was within the provisions of the Washington factory act. The court held that it is not essential that machinery be housed in a building in order to constitute a 'factory, mill, or workshop' within the meaning of the statute.

No court decisions from other jurisdictions involving agricultural machinery fully comparable to a hop picker and recleaner have been called to our attention. It is worth noting, however, that the courts have quite uniformly held that particular kinds of farm machinery, or places on farms where machinery is utilized, are not 'factories,' 'plants,' or 'manufacturing operations,' within the meaning of these terms in the factory acts. See Chapman v. Piechowski, 153 Wis. 356, 141 N.W. 259, 45 L.R.A.,N.S., 687 (portable steam-driven threshing machine); Groat v. Clausen, 139 Neb. 689, 298 N.W. 563 (silage cutter); Johnson v. Bear, 225 Mo.App. 1097, 40 S.W.2d 481 (silage cutter); 96 A.L.R. 1351, 1354, annotation; 163 A.L.R. 447, 455, annotation. In Wisconsin, following the Chapman case, the 'safe-place' statute was amended to include mechanically-powered agricultural machinery. Tiemann v. May, 235 Wis. 100, 292 N.W. 612.

In our own state it has been held that work on a hay-baling machine is not within the purview of the industrial insurance law. Barney v. Anderson, 116 Wash. 352, 199 P. 452. The industrial insurance law defines the term 'factories' as '* *...