Christensen v. Weyerhaeuser Timber Co.

• Decision Date: 01 February 1943
• Docket Number: 28822.
• Citation: 133 P.2d 797,16 Wn.2d 424
• Court: Washington Supreme Court
• Parties: CHRISTENSEN v. WEYERHAEUSER TIMBER CO.

133 P.2d 797

16 Wn.2d 424

CHRISTENSEN v. WEYERHAEUSER TIMBER CO.

No. 28822.

Supreme Court of Washington, En Banc.

February 1, 1943

Death action by Edith A. Christensen, as administratrix of the estate of Christian Christensen, deceased, against Weyerhaeuser Timber Company. From a judgment dismissing the action, plaintiff appeals.

Affirmed.

BLAKE MILLARD, and MALLERY, JJ., dissenting.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, judge.

Sam L Levinson and Jay Friedman, both of Seattle, and Frank M Allyn, of Bellingham, for appellant.

Wright, Innis & Simon and Clark A. Eckart, all of Seattle, and Rucker & Barnett, of Everett, for respondent.

STEINERT Justice.

This action was instituted by Edith A. Christensen, administratrix of the estate of Christian Christensen, deceased, on her own behalf as his widow and on behalf of their minor daughter, to recover damages from the defendant, Weyerhaeuser Timber Company, for the death of the husband and father. The complaint alleged that, because of defendant's negligent maintenance of its wharf and certain electrical apparatus thereon, the decedent, while in the performance of his duties as a member of a visiting ship's crew, sustained an electrical shock causing him to fall from the edge of the wharf into the water beneath and drown. Defendant's answer consisted to a general denial and an affirmative defense of assumption of risk.

The action was tried Before the court and a jury. At the close of the plaintiff's case, the court sustained defendant's challenge to the sufficiency of the evidence, upon two grounds: (1) that, although the decedent may have met his death in the manner contended by the plaintiff, his legal relationship to the defendant at the time was merely that of a licensee, to whom the defendant owed only the duty of not injuring him wantonly or willfully, and that plaintiff's evidence was not sufficient to establish negligence in that degree on the part of the defendant; and (2) that, were it adjudged that the decedent was at the time an invitee, rather than a licensee, and that the defendant was at the same time guilty of negligence in failing to exercise, for the protection of invitees, reasonable care in the maintenance of its wharf and electrical equipment, still the evidence was insufficient to take the case to the jury upon the question whether defendant's negligence was the proximate cause of the death.

After denying plaintiff's motion for a new trial, the court entered judgment dismissing the action, whereupon the plaintiff appealed. The assignments of error relate to the two grounds upon which the trial court sustained the challenge to the sufficiency of the evidence to take the case to the jury.

The facts, according to the evidence adduced by the appellant, are as follows: Respondent, Weyerhaeuser Timber Company, a corporation, was the owner of a mill, commonly known as Mill A, in Everett, Washington. In connection with this mill, it maintained a wharf, or pier, at which vessels would moor for the purpose of taking aboard the company's lumber products. The wharf was built upon piling, was between 500 and 600 feet in length, from north to south, and in a general way paralleled the shore. It was approximately 100 feet wide, measured from east to west. The inshore, or easterly, side of the wharf stood about 200 or 300 feet out from shore, and a causeway led landward from each end of the pier to the mill proper, thus preventing access by seagoing vessels to the inshore side of the wharf. Vessels were loaded only from the offshore side, while the inshore side was used exclusively for purposes of storing lumber intended for shipment.

Along the inshore side of the wharf, about a foot from the edge thereof, was a row of square poles, or standards, about 30 feet high and approximately 75 or 100 feet apart. Upon the top of each of these poles was a flood light, with a reflector attachment, which at night illuminated the offshore, or loading, edge of the wharf, leaving an area of semidarkness around the foot of the pole. This action involves only one of these poles and the area immediately surrounding it.

On this particular pole, which was situated about midway in the length of the wharf, was a fixture commonly known as a Benjamin fitting, devised to serve as an electrical outlet for plugging in auxiliary extensions and transmitting a current of one hundred ten volts. This fixture was attached to the side of the pole, facing west, and was located approximately four or five feet above the floor level of the wharf. The wire leading into the Benjamin fitting came down from the top of the pole in a pipe conduit about three-fourths of an inch in diameter. Immediately below the Benjamin outlet, and connected with it by a metal pipe through which the wire ran, was a box with a thumb switch on the right-hand side. There was no ground wire from either the outlet or the switch box.

Immediately above the Benjamin fitting, a small piece of canvas was tacked to the pole and hung down as a loose cover over the outlet. In rainy weather this canvas, on becoming saturated with water, would tend do droop against the outlet and come in contract with the hand of a person seeking to make an electrical connection at the fixture. In case of an electrical leakage at that point, in wet weather, a person seeking to make such connection would run the risk of receiving a shock.

There was evidence from which the jury could have found that the Benjamin outlet and the switch immediately below it were improperly installed in that there was no ground wire to take away any leaking current, and, further, that the canvas cover was not a proper covering in wet weather. The other poles along the wharf also had similar outlets, but with these we are not here concerned.

The planks forming the floor of the wharf in the vicinity of the particular pole were staggered and of uneven length, some of them projecting a foot or more beyond the others, along the inshore edge of the pier. There was no string-piece or guardrail at the margin of the structure and, as already stated, the pole stood within a foot of the inner edge of the wharf. At the time here in question, considerable lumber was piled close by the pole and near it also lay a 15-foot spar. In wet weather, the deck of the wharf became slippery.

On December 24, 1940, and for several days preceding, the steam schooner James W. Griffiths, which was owned and operated by an independent company, was moored to the offshore side of the wharf, at a point opposite the pole above described, and during that interim was engaged in taking on a cargo of lumber. For some years Before , the vessel had called regularly at respondent's dock for lumber which it transported south, and had frequently tied up at this particular wharf. On such occasions, it had been the practice of those in charge of the vessel to shut off its engines and generators at night after the loading operations of the day had ended. At the same time, the employees of the ship would stretch a cable from the vessel to one of the poles and plug it into the Benjamin fitting, thus enabling them to have electric light upon the ship during the night and until the ship's generators were again put in operation. There was testimony to the effect that this was the general practice of the ship's employees wherever and whenever a shore connection was available during the period of the loading operations at a particular wharf. There was no evidence, however, that the respondent in this case had agreed or obligated itself to furnish electricity to the ship at any time or for any purpose, or that the appropriation of such electricity, as above described, by the ship and its crew for lighting purposes was other than permissive on the part of the respondent.

On the night of December 23, 1940, the second assistant engineer of the James W. Griffiths, to whom had been assigned the task of connecting the ship's cable to the Benjamin outlet, made this connection at about 9 o'clock. The engines and generators of the ship were at that time shut down, not to be started again until 5 o'clock the following morning in preparation for the loading operations to continue on that day. It was similarly the duty of the deceased, Christian Christensen, first assistant engineer, who was the engineer in charge of the watch beginning at 5 o'clock on the morning of December 24th, to take in the cable at that hour, after disconnecting it from the outlet attached to the pole on the inner edge of the wharf.

Three members of the crew who went ashore the early part of the evening of December 23d, returned about 1 o'clock the next morning. One of them testified that, according to his recollection, the wharf was very dark on their return and that it was necessary for one of the men to use a flashlight in order to get around; that when they got aboard ship, the vessel was without lights; and that they had to use kerosene lamps until they retired.

Shortly after 5 o'clock in the morning, a crew member, whose duty it was to call Christensen, reported that he was not in his room. Another crew member then went to Christensen's quarters and noted that his bed had been occupied; that the alarm clock had been set for 5 o'clock; and that the alarm spring had not run entirely down. Further search of the vessel failed to reveal any trace of Christensen. The master was then notified and, after an additional search without results, the police were called.

About 11 o'clock in the forenoon of December 24th, the captain of the Everett police arrived, accompanied by a newspaper reporter. At that time it was raining quite hard, as it had been for some time previously, and the deck of the wharf was very wet....