Browning v. Ward

• Decision Date: 22 December 1966
• Docket Number: No. 38574,38574
• Citation: 70 Wn.2d 45,422 P.2d 12
• Court: Washington Supreme Court
• Parties: Nellie BROWNING, a single woman, Respondent, v. John H. WARD and Jane Doe Ward, his wife, Appellants.

Page 45

70 Wn.2d 45

422 P.2d 12

Nellie BROWNING, a single woman, Respondent, v. John H. WARD and Jane Doe Ward, his wife, Appellants.

No. 38574.

Supreme Court of Washington, Department 2.

Dec. 22, 1966.

Lycette, Diamond & Sylvester, Earle W. Zinn, Seattle, for appellants.

Kahin, Horswill, Keller, Rohrback, Waldo & Moren, Frank J. Woody, Seattle, for respondent.

BARNETT, Judge. ^*

Plaintiff brought this action against the defendants for personal injuries. She sustained these injuries as a result of a fall while employed as a housekeeper at the defendants' home. The jury returned a verdict in favor of the plaintiff for $5,000. This is an appeal from a judgment entered upon the verdict.

The following is a brief statement of the pertinent facts evaluated in the light most favorable to the plaintiff.

At the time the plaintiff fell and was injured she was employed as a housekeeper by the defendants, Mr. and Mrs. Ward, and she was working within the course and scope of her employment. She had been working almost every Monday as the defendants' housekeeper for a period of a few months less than two years. During this time she had established a routine for doing her work. The plaintiff would go to work at the defendants' home about 7:15 a.m. Monday mornings; she would do some work in the bottom level of the house and then go upstairs to the second level to get a vacuum cleaner. This vacuum cleaner was an Electrolux. It is the cylindrical tank type which has a detachable flexible suction hose, two metal pipes, and a detachable electrical connection cord. The plaintiff would usually take the vacuum tank, the electrical cord, and the hose with the pipe attachments, in one trip down the stairs to the bottom level of the house in order to clean that area.

The stairway was of ordinary width, it had walls on both sides all the way to the bottom and a door at the top of the staircase.

On the day of her accident the plaintiff proceeded as usual; she began her work in the bottom level of the defendants' house, then she went up the stairs to get the vacuum cleaner. The plaintiff gathered up the vacuum tank and the hose and pipe attachments and started to return to the downstairs. However, sometime before she reached the stairs she discovered that the electrical cord was not with the vacuum cleaner as was usual. The plaintiff told Mrs. Ward that the electrical cord was missing, then started to go down the stairs with the load she had, which was manageable, as it had been at all times in the past. After the plaintiff had taken two steps down Mrs. Ward called out, saying that she had found the electrical cord. The plaintiff stopped on the steps and Mrs. Ward came to the staircase with the electrical cord. Mrs. Ward reached over the plaintiff's left shoulder with the coiled or looped cord and laid it across plaintiff's left forearm. The plaintiff could not grasp the cord in either hand. In her right hand and arm she carried the flexible hose and the two metal pipe attachments. She used both her right hand and arm to hold attachments so that she could get down the stairs. In her left hand plaintiff carried the vacuum tank by its handle. In carrying the tank by its handle her left forearm was in a horizontal position. Across this forearm the electrical cord was placed by Mrs. Ward, not fastened or secured in any way.

After placing the electrical cord across the plaintiff's forearm Mrs. Ward said, 'Okay, you are ready to go now' or words to that effect, then she left the stairs, shutting the door at the top of the steps behind her.

After Mrs. Word's comment, the plaintiff started down the steps again. The motion of the plaintiff descending the steps caused the electrical cord to slip off her forearm simultaneously with her taking a step down. The plaintiff slipped on the cord, lost her balance and fell.

The plaintiff fell backwards, coming down on the vacuum tank in the area of her lower torso, then she slid down to the steps below. This fall resulted in severe injuries to the plaintiff's spine and legs, causing her to be hospitalized on several occasions.

The defendants make four assignments of error. Three of the assignments of error are interwoven and relate to the allegations of primary negligence by the defendants and contributory negligence by the plaintiff.

The defendants first contend that the plaintiff's evidence was insufficient to justify the trial court in submitting the case to the jury. Secondly, they contend that if they were negligent, the plaintiff was contributorily negligent as a matter of law, hence the court erred in submitting the case to the jury.

By appropriate motions the defendants' position was submitted to the trial court during the course of the trial. In evaluating the sufficiency of the evidence the trial court had to keep in mind and apply the rules we have enunciated in a myriad of cases, that the evidence of the non-moving party must be considered in the light most favorable to him, no element of discretion is involved, and that such motions can be granted only when it can be held as a matter of law that there is no evidence or reasonable inference therefrom to sustain a jury verdict for the non-moving party. Schwab v. Department of Labor and Industries, 69 Wash.Dec.2d 113, 417 P.2d 613 (1966); Boley v. Larson, 62 Wash.2d 959, 385 P.2d 326 (1963); Helman v. Sacred Heart Hosp., 62 Wash.2d 136, 381 P.2d 605, 96 A.L.R.2d 1193 (1963). In addition, the trial court must apply the rule that only in the clearest of cases is the court justified in determining that contributory negligence exists as a matter of law, and that as a condition precedent for such a determination is a conclusion that reasonable minds could not have differed in their interpretation of the factual pattern. Boley v. Larson, supra.

The defendants do not argue that in the circumstances of this case the defendant-wife did not owe a duty of reasonable care to the plaintiff servant. They merely urge that the facts do not justify a finding of negligence on the part of the defendant-wife and that reasonable minds could not differ as to this conclusion.

We disagree. Reasonable minds could reach different opinions as to whether the defendant-wife created a condition of potential danger to the plaintiff by placing the electrical cord in an unsecured looped fashion upon the plaintiff's already encumbered left arm while she was in the process of descending the stairs and whether or not the probability of harm to the plaintiff was reasonably foreseeable. Therefore, we conclude that the ruling of the trial court in submitting the question of the defendants' primary negligence to the jury was proper.

We turn now to the question of the plaintiff's contributory negligence. Preliminarily, we will set out some considerations that are important to the disposition of this question. First of all, the trial court had a duty to be mindful of the relationship of the parties, viz., the plaintiff was employed as a domestic servant by the defendants. Secondly, a fundamental principle pertinent to the court's consideration of the sufficiency of the evidence is that a master and servant are not altogether upon a footing of equality. Jancko v. West Coast Mfg. & Inv. Co., 34 Wash. 556, 76 P. 78 (1904). Finally, when considering the sufficiency of the evidence with reference to the servant's contributory negligence the trial court must apply the rule that a master may not assert that an injured employee is barred from recovery merely because he was aware or should have known of the dangerous condition negligently created or maintained by the master. However, if the servant's voluntary exposure to the risk is unreasonable under the circumstances, he will be barred from recovery because of his contributory negligence....