Brittain v. Booth, 5098

• Decision Date: 17 October 1979
• Docket Number: No. 5098,5098
• Citation: 601 P.2d 532
• Parties: Randy L. BRITTAIN, Appellant (Plaintiff below), v. Roland BOOTH, d/b/a Del-Hi Construction Company, Inc., and Opha Hartsook, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 532

601 P.2d 532

Randy L. BRITTAIN, Appellant (Plaintiff below), v. Roland BOOTH, d/b/a Del-Hi Construction Company, Inc., and Opha Hartsook, Appellees (Defendants below).

No. 5098.

Supreme Court of Wyoming.

Oct. 17, 1979.

Glenn A. Hottenstein (argued), of Guy, Williams & White, Cheyenne, for appellant.

Glenn Parker (argued), James L. Applegate and Thomas G. Gorman of Hirst & Applegate, Cheyenne, for appellee Opha Hartsook.

^* Bard Ferrall, Cheyenne, for appellee Roland Booth, d/b/a Del-Hi Construction Company, Inc.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

Appellant-plaintiff appeals form a $5,100 judgment entered on a verdict in a personal injury action, in which the jury assessed his damages at $10,000 but apportioned the negligence 49 percent to him and 51 percent to appellee-defendant Hartsook. ¹ Appellant contends that the verdict was inadequate and irregular; that there was no evidence to support the finding of negligence on his part; and that he was not negligent as a matter of law. Therefore, he requests a new trial on only the issue of the amount of damages.

We affirm.

On August 7, 1974, appellant, age 16, had been an employee of Hartsook Equipment and Pump Service, Inc. for about one month. Hartsook Equipment and Pump Service, Inc. had a contract to place two large gasoline tanks underground on certain premises in Green River. It subcontracted the excavation work to Roland Booth, doing business as Del-Hi Construction Company, Inc. Booth made the excavation, the sides of which were not sloped or shored, and no one tested the soil to determine if sloping or shoring was necessary to prevent a cave-in. Appellant, Booth and John Ramirez (another employee of Hartsook Equipment and Pump Service, Inc.) went into the excavation for one of the tanks to level the floor on which the tank was to be placed. After the crane arrived to place the tank, a portion of the north side of the excavation caved in, covering appellant with dirt and injuring him. At the time, the appellant was in a crouched or stooped position. The dirt from the cave-in was about knee deep and covered appellant to a depth of about 6 inches. The excavation was 11 feet deep, 12 feet wide and 30 feet long. The foregoing facts are not in material controversy. Additional facts will be set out herein as necessary.

Booth was also a defendant at the trial of the case. The jury found no negligence on his part. A and A Oil Company (the party for which the tank was being installed), James Welding (crane operator), and Hartsook Equipment and Pump Service, Inc. ² were all parties to the action at one time but were dismissed from it prior to trial. Appellee was made a defendant as a co-employee of appellant.

APPELLANT'S NEGLIGENCE

In its instructions, the trial court outlined, without objection, appellee's contentions with reference to appellant's negligence. These contentions included (1) appellant's assumption of "the risk that such an accident might occur," and (2) the fact that the cave-in "distributed earth to about knee depth of (appellant) and * * * had (appellant) not negligently squatted or crouched down with his head below his knees, he would not have been covered by the approximately six inches of earth which did in fact cover him." ³ By its verdict, the jury found appellant negligent in at least one of these fashions.

Before giving attention to whether or not there was substantial evidence to support a finding of negligence in the nature of assumption of risk, it is necessary to examine the posture of the doctrine of assumption of risk in this state. A distinction between contributory negligence and assumption of risk has not been recognized in Wyoming. Ford Motor Company v. Arguello, Wyo., 382 P.2d 886 (1963); Rocky Mountain Trucking Company v. Taylor, 79 Wyo. 461, 335 P.2d 448 (1959); Sanders v. Pitner, Wyo., 508 P.2d 602 (1973). Prior to the enactment of the comparative negligence statute in Wyoming, ⁴ contributory negligence, and with it assumption of risk, were absolute defenses to a negligence action. Ford Motor Company v. Arguello, supra; and Town of Douglas v. Lore, Wyo., 375 P.2d 399 (1962).

The comparative negligence statute directs apportionment of fault occasioned by contributory negligence which is "not as great as the negligence of the person against whom recovery is sought." Since, in Wyoming, assumption of risk has been held to be a form of contributory negligence, the obvious legislative intent was to include it within the apportionment. All statutes are presumed to be enacted with full knowledge of the existing state of the law with reference thereto. DeHerrera v. Herrera, Wyo., 565 P.2d 479 (1977); Matter of Adoption of Voss, Wyo., 550 P.2d 481 (1976); Civic Ass'n of Wyoming v. Railway Motor Fuels, 57 Wyo. 213, 116 P.2d 236 (1941). Accordingly, assumption of risk, as a form of contributory negligence is not an absolute defense to a negligence action, but is a basis for apportionment of fault.

In this respect, it should be noted that assumption of risk as a form of contributory negligence must not be confused with an agreement to hold one blameless or harmless for damages resulting from his negligence or other conduct. Such an agreement may be enforced if it is not contrary to public policy. See Blackburn v. Dorta, Fla., 348 So.2d 287 (1977); Lyons v. Redding Construction Company, 83 Wash.2d 86, 515 P.2d 821 (1973); Wilson v. Gordon, Me., 354 A.2d 398 (1976); Springrose v. Willmore, 292 Minn. 23, 192 N.W.2d 826 (1971); Gilson v. Drees Brothers, 19 Wis.2d 252, 120 N.W.2d 63 (1963).

Turning then to a consideration of the sufficiency of the evidence in this case to support the finding of negligence on the part of the appellant, we note that under the oft-repeated standard under which such is done, we must assume the evidence in favor of the prevailing party as true and leave out of consideration the evidence in conflict therewith, giving to the evidence in favor of the prevailing party every favorable inference which may be reasonably and fairly drawn from it; and we are not to evaluate the evidence, rather we are to determine only if there was substantial evidence upon which the jury could arrive at its decision if it believed the evidence in favor of the prevailing party. Brasel and Sims Construction Co. v. Neuman Transit Co., Wyo., 378 P.2d 501 (1963); Fisher v. Robbins, 78 Wyo. 50, 319 P.2d 116 (1957); Ford Motor Company v. Arguello, supra; Potts v. Brown, Wyo., 452 P.2d 975 (1969).

In applying this standard to the question of whether or not a reasonable person of ordinary prudence would have entered the excavation in the face of the risk of a cave-in, we find evidence from witness Hollingsworth that the excavation was subject to cave-in and should have been either shored or sloped to prevent a cave-in. Occupation Health and Safety Agency regulations were introduced into evidence and were included in the instructions to the jury, which reflect the potential for cave-ins in such excavations, the necessity for sloping or shoring to prevent them, and the danger to persons in the excavations if such is not done. The testimony was that the regulations were applicable only to those excavations in which a worker was to enter. Booth and appellee each testified that they would have sloped the sides of the excavation if they had known a person was to enter it. Booth testified that he had twenty years of experience with excavations, and that all excavations are hazards. Appellant testified that he noticed the composition of the soil. He called it shaley. He was at the worksite and observed the excavating process. He had worked in at least one other excavation. He testified that he was not ordered into the excavation by appellee or by anyone else, and that "we (he and Ramirez) just discussed what needed to be done and we went and done it." The evidence reflected that the excavation was 11 feet deep, 12 feet wide and 30 feet long, with vertical sides (not sloped) and without any shoring. It reflected the soil to be sandy.

There was substantial evidence from which a jury could find the existence of a risk or danger to one entering this excavation, and from which it could find that a reasonable man of ordinary prudence would not take the risk or subject himself to the danger. And this is the test by which appellant's act is to be measured. The test is not that which Ramirez or Booth or appellee or any other specific person would do or did do.

Nor can it be contended that appellant cannot be held negligent because he did not comprehend or recognize the danger. Such failure in itself could constitute negligence. We have said that a "reasonable" person is one

" * * * exercising those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others. (Citation.)" Johnston v. Vukelic, 67 Wyo. 1, 18, 213 P.2d 925, 930 (1950).

The jury could conclude that failure to recognize the potential for danger and injury in entering an excavation 11 feet deep and 12 feet wide in sandy or shaley soil with vertical unsloped and unshored sides is an act which a reasonable person of ordinary prudence would not do. The jury could premise such a conclusion on a recognition that the sides of such an excavation can, and do, cave in at times inasmuch as such recognition is within man's common fund of knowledge and experience. A jury may apply its own knowledge of matters within man's common fund of knowledge and experience to the issues before it. Casper Lodge No. 22, I.O.O.F. v. Corbridge, 74 Wyo. 244, 286 P.2d 1047, 1056 (1955); and Brown v. State, 80 Wyo. 12, 336 P.2d 794 (1959).

Since there was substantial evidence from which the jury could find negligence in this respect on the part of appellant, we cannot disturb the finding. This conclusion makes unnecessary a consideration of the...