Bowers v. Foster

• Decision Date: 12 July 1929
• Docket Number: 21790.
• Citation: 153 Wash. 93,278 P. 1072
• Parties: BOWERS et ux. v. FOSTER et ux.
• Court: Washington Supreme Court

278 P. 1072

153 Wash. 93

BOWERS et ux. v. FOSTER et ux.

No. 21790.

Supreme Court of Washington

July 12, 1929

Department 2.

Appeal from Superior Court, King County; Malcolm Douglas, Judge.

Action by Robert Bowers and wife against Frank W. Foster and wife. Judgment for plaintiffs, and defendants appeal. Affirmed.

Roberts Skeel & Holman and A. P. Curry, all of Seattle, for appellants.

Vanderveer & Levinson, of Seattle, for respondents.

FRENCH J.

The respondents, husband and wife, had been for a year prior to May, 1927, living in a house which they leased in Seattle Wash. They had given notice of their intention to move away from the premises, and the house being in need of repairs, the owner employed appellant, Frank W. Foster, a contractor, to do the work. Foster employed a carpenter and laborer, who actually did the work, while he inspected the work once or twice a day. The men had been working for a day or two and on the afternoon of May 5, 1927, Mrs. Bowers, accompanied by a boarder in the house, returned to the premises about 4 p. m., and found that the floor boards of the porch had been removed excepting those immediately in front of the door and extending from the door to the porch steps. As to whether these had been removed and replaced there is some dispute, and we will refer to that matter later.

That evening Mrs. Bowers opened the front door of the house stepped out and was injured, brought this action to recover damages, the case was tried before the court with a jury, and from a judgment in her favor this appeal follows.

The assignments of error go to but two questions: First, that the jury were not properly instructed, and, second, that appellants are entitled to a dismissal as a matter of law.

The instructions particularly complained of are as follows:

'Instruction No. 4. Every person has a right to assume until he either has, or by the exercise of reasonable care should have notice to the contrary, that other persons engaged in doing acts dangerous to their security will perform said acts in a reasonably safe and careful manner; and the mere failure to anticipate and guard against negligence on the part of another which one has no occasion to foresee is not contributory negligence.

'Instruction No. 5. The law does not impose upon the plaintiff Johanna Bowers, the fixed duty of examining or inspecting the porch floor in front of her doorway for the purpose of discovering defects which were not open, apparent or obvious. Her duty with reference to that matter was to exercise that degree of care in using the flooring which a reasonably prudent person would have exercised under all of the same circumstances. If she did this she was not guilty of contributory negligence.'

Instruction No. 4 is correct as an abstract statement of law, and has been approved by this court in practically the identical language in which given. Steele v. Northern Pacific Ry. Co., 21 Wash. 287, 57 P. 820.

Instruction No. 5 necessarily follows and is merely a corollary of instruction No. 4, and both instructions are clearly applicable to the facts in the case at bar. We think the requested instructions, in so far as the same are applicable to this case, and in so far as the same state correct principles of law, were fully covered in the instructions given. Respondents' testimony as to what occurred is as follows:

'Q. What had been done to the porch during your absence? A. Well, all the boards had been taken up on the south side, and on the north side, with the exception of the pathway from the front door out to the end of the porch.

'Q. What was there there? A. There was flooring boards lying down...