Brown v. Quick Mix Co., Division of Koehring Co.

• Decision Date: 01 May 1969
• Docket Number: No. 39483,39483
• Citation: 454 P.2d 205,75 Wn.2d 833
• Court: Washington Supreme Court
• Parties: Anderson BROWN, Respondent, v. QUICK MIX COMPANY, DIVISION OF KOEHRING COMPANY, doing business as Ka-Mo, a Wisconsin corporation, Appellant, Star Machinery Company, a Washington corporation, Respondent.

Page 833

75 Wn.2d 833

454 P.2d 205

Anderson BROWN, Respondent, v. QUICK MIX COMPANY, DIVISION OF KOEHRING COMPANY, doing business as Ka-Mo, a Wisconsin corporation, Appellant Star Machinery Company, a Washington corporation, Respondent.

No. 39483.

Supreme Court of Washington, En Banc.

May 1, 1969.

Rehearing Denied July 17, 1969.

Preston, Thorgrimson, Horowitz, Starin & Ellis, John A. Gose, Charles E. Peery, Seattle, for appellant.

Miracle & Pruzan, Howard P. Pruzan, Seattle, for respondent.

ROSELLINI, Judge.

This is a products liability action, brought against the manufacturer and the retailer of an earth-boring drill by a 'pile buck' whose job it was to manually guide the drill to the desired position for drilling a hole. In the process of doing so, he got his hand caught between the flights of the auger and a metal centralizer attached to the H beam which held the auger in place for drilling. He lost three fingers and a part of his right hand. The jury found that the manufacturer was liable in the amount of $76,719 but exonerated the retailer.

The evidence showed that the components of the drill were bought by the respondent's employer for the purpose of drilling holes in connection with the construction of a freeway in Seattle. The drill was designed to be attached to a crane from free swinging lines and to be used with an H beam as a steadying device. It was designed to be used in the way that it was being used at the time the respondent was injured, although, as the appellant points out, it was also designed to be used in other ways. For example, it could be mounted on a truck and used for tunneling.

Two pile bucks were assigned to tend the drill, centering the auger over stakes which had been set by engineers, and signaling the crane operator to lower, first the auger, then the H beam with the centralizer attached. It was also necessary for the pile buck to hold the centralizer in position while the H beam was being lowered. When the centralizer was lowered, it naturally passed over the flights of the auger, creating a shearing action. It was the appellant's position in the court below that this situation was an open and apparent hazard and that, if the respondent's hand was under the centralizer and between the flights of the auger, it was there because of the respondent's carelessness. It was the respondent's contention, on the other hand, that the shape of the centralizer (which was like a round pipe surrounding the auger with no lip or 'collar' at the bottom edge) was such that there was an unreasonable risk of a pile buck's getting his hand caught between the centralizer and the auger, particularly in view of the fact that the pile buck had to work in slippery and uneven soil where he could easily be thrown off balance, and that safeguards should have been provided.

The respondent's testimony was that he did not put his hand under the centralizer, but was holding it on the sides in the usual way when he signalled the crane operator to lower the centralizer, and that his hand slipped in some way as the centralizer was being lowered and got caught between the bottom edge of the centralizer and the auger.

The jury was instructed on the liability of a manufacturer for negligence in the design of a product and for violation of an implied warranty of fitness, basing its instructions on the law set forth in Dipangrazio v. Salamonsen, 64 Wash.2d 720, 393 P.2d 936 (1964). This court has more recently adopted the concept of liability expressed in the Restatement (Second) of Torts § 402A, at 342 (1965). Ulmer v. Ford Motor Co., Wash., 452 P.2d 729 (1969). However, this case was tried on the theories set forth in the trial court's instructions, and the respondent has stated that he is content with those instructions, even though they state the law less simply than does section 402A and might conceivably place upon him a greater burden of proof. We will treat those instructions as the law of the case, except insofar as they are questioned by the appellant.

We will discuss only those of the 19 assignments of error which are supported by citation of authorities, since none of those not so supported is well taken on its face. State v. Gregory, 73 Wash.Dec.2d 541, 439 P.2d 400 (1968). Also, we will discuss as one contention those assignments of error which are argued together.

The first of these is that the danger was open and apparent, the respondent was aware of it, and therefore there was no liability. As the respondent states in his brief, his testimony was that he was aware that if he put his hand under the centralizer and signalled for the crane operator to drop the H beam, it would shear off his hand. But he was not aware of the danger of having his hand slip and get caught between the centralizer and the auger, which danger existed, the evidence showed, because there were no adequate handled on the centralizer and its shape was such that it would not deflect his hand away from the auger if it slipped while he was holding the centralizer or guiding it into position. Thus, there was evidence upon which the jury could find that the respondent was not aware of the danger.

Under the rule adopted by this court in Ulmer v. Ford Motor Co., Supra, the fact that a danger is patent does not automatically free the manufacturer from liability, but does so only if the plaintiff voluntarily and Unreasonably encounters it. Restatement (Second) of Torts § 402A, comment N at 356 (1965). It could never be said as a matter of law that a workman whose job requires him to expose himself to a danger, voluntarily and unreasonably encounters the same. See Miller v. St. Regis Paper Co., 60 Wash.2d 484, 374 P.2d 675 (1962).

In this case, however, the trial court instructed the jury in instruction No. 21 that the respondent could not recover if he was aware of the particular danger and voluntarily exposed himself to it, and neither the appellant nor the respondent has assigned error to that instruction. It is therefore the law of the case. Since there was evidence to support the jury's finding that the respondent did not assume the risk, it was not error to refuse to hold as a matter of law that he did so.

The appellant urges that the court erred in submitting the theory of implied warranty to the jury because there was no evidence of privity between the appellant and the respondent. Under the instructions given by the trial court, it was not incumbent upon the respondent to prove privity in order to recover. The court instructed the jury that the warranty implied in law extends to all whom the manufacturer should reasonably expect to use his product. This instruction was in accord with the law of this jurisdiction. Ulmer v. Ford Motor Co., Supra; Dipangrazio v. Salamonsen, Supra.

Conceding that privity may not be necessary, the appellant next argues that it was error to instruct on warranty at all, that the negligence instructions adequately covered the applicable law, and that instructions on breach of implied warranty were redundant. It would be more accurate to say that the warranty instructions adequately covered the law and the negligence instructions placed an unnecessary burden on the respondent. In its instruction No. 12, the court said, regarding the warranty implied in law:

As applied to the instant case the question is: Was there an unreasonable risk of the equipment causing substantial bodily harm to a person using it in a reasonable manner and for a purpose for which it was manufactured?

This was an accurate statement of the question before the jury. See Ulmer v. Ford Motor Co., Supra. If the court's further instructions on the theory of negligence placed on the respondent the burden of proving more than this, that is an error of which only the respondent can complain. The appellant has not shown in what respect it was hurt by the giving of the two sets of instructions.

Error is next alleged in the admission of certain brochures and operating instructions issued by the appellant, it being the contention that there was no reliance upon these publications and therefore they cannot be the basis of recovery. The answer to this is that the documents were not received as evidence of breach of an express warranty or as the basis for recovery by the respondent. They were admitted in evidence as tending to show that, although the purchaser did not follow the instructions of the appellant in setting up the drill, it was set up in a manner contemplated and approved by the appellant. This evidence was important in refuting the appellant's contention in the court below that it had sold a 'box of parts' and could not be held responsible for an injury resulting from the manner in which they were put together and operated.

The appellant's authorities, holding that documents upon which the plaintiff has not relied will not support a recovery for breach of express warranty, are irrelevant. No authorities are cited which would support a contention that the documents were not admissible for the purpose for which they were actually offered and received in evidence. They were relevant and competent for this purpose.

It is urged that the court erred in permitting evidence of subsequent changes made in the centralizer. The evidence showed that, on the day the accident occurred, the respondent's employer welded a guard in the shape of a truncated cone on the centralizer, and that it was used thereafter with this guard attached to it. While there was some dispute as to whether the guard was practical under certain circumstances, the respondent's evidence tended to show that it did not hamper the use of the drill. This evidence was, of course, admissible to show feasibility of guarding the centralizer, and the trial court instructed the jury that it should be considered only for this purpose and not as evidence that the respondent or the retailer was 'negligent.'

Nevertheless, the appellant claims that the...