Cummins v. Dufault

• Decision Date: 24 June 1943
• Docket Number: 28821.
• Parties: CUMMINS v. DUFAULT.
• Court: Washington Supreme Court

139 P.2d 308

18 Wn.2d 274

CUMMINS v. DUFAULT.

No. 28821.

Supreme Court of Washington, En Banc.

June 24, 1943

Action by C. Paul Cummins against Dulcina Dufault for injuries sustained by the plaintiff while he was working for the defendant in a hop kiln. From an adverse judgment, defendant appeals.

Reversed with instructions to dismiss the action.

GRADY MILLARD, BLAKE, and MALLERY, JJ., dissenting.

Appeal from Superior Court, Yakima County; Robert J. Willis, judge.

Bruce Bartley and Max P. Nicolai, both of Seattle, for appellant.

James V. McCabe and Don M. Tunstall, both of Yakima, for respondent.

SIMPSON Chief Justice.

The plaintiff brought this action to recover compensation for personal injuries sustained while working for the defendant in a hop kiln. In his amended complaint plaintiff alleges that he was employed by defendant during the month of August, 1940; that, as a part of his duties, he assisted in moving hops from the drying room and dumping them in a bin in an adjoining room; that his work was done with large shovels or scoops, provided for that purpose, which were filled with hops in the drying room and pushed by the operator over a wooden tramway and dumped into open bins alongside; that the drying room and the tramway were approximately twelve feet above the floor of the bins. It was further alleged that, on the opposite side of the tramway from the bin into which the hops were dumped, defendant had attached burlap to a height of two or three feet to prevent the hops from falling into the bins on that side. Plaintiff alleged that defendant directed him to perform the work with three other workmen, although he had never had any experience in working in a kiln and knew nothing about its operation and that defendant gave him no instruction as to his duties or any warning of dangers incident thereto; that five minutes after commencing his work, he '* * * miscalculated the position of the west edge of said tramway and stepped on the edge thereof and his foot slipped therefrom, causing him to plunge headlong' on to the floor twelve feet below, where he sustained serious injury. His charges of negligence were that defendant did not furnish him a safe place to work and did not warn him of the dangers and defects of the tramway in that it did not have guard rails; that the burlap permitted hops to accumulate and hide the edge of the tramway; that the flooring of the tramway was nailed insecurely and there was no sufficient support underneath, which permitted it to 'give and bend when walked upon'; that these dangers were known to defendant and not to plaintiff.

Defendant answered by way of general denial, and set up the affirmative defenses of contributory negligence, assumption of risk and the fellow servant doctrine.

The cause came on for trial Before a jury, and resulted in a verdict for plaintiff. At appropriate times defendant challenged the sufficiency of the proof submitted by plaintiff by motions for nonsuit and for judgment n. o. v. The motions were denied, and judgment was entered upon the verdict. Defendant has appealed.

Her assignments of error are in denying the motion for nonsuit and for judgment notwithstanding the verdict.

In passing upon the issues involved in this case, we recognize the rule that respondent is entitled to the benefit of all the evidence and the reasonable inferences therefrom in support of his judgment; and in considering the evidence, we must exclude all that is contrary or in conflict. In other words, Before we can set aside the judgment, it must appear that reasonable men must conclude that the evidence does not establish liability. Knight v. Trogdon Truck Co., 191 Wash. 646, 71 P.2d 1003; Johnson v. Watson, 11 Wash.2d 690, 120 P.2d 515.

With this rule in mind, we summarize the evidence most favorable to respondent.

Respondent, twenty-seven years of age, commenced to work for appellant the day Before the accident. This work consisted of hauling hops and cleaning the hop kiln preparatory to the drying of hops. Although he had never worked in a hop kiln Before , respondent had worked on a farm from boyhood, and had spent about two months in pruning, training and packing hops.

The kiln in which the accident occurred was an L-shaped building, the top of the 'L' facing in a southerly direction. There was a large kiln and a small kiln on the second floor of the building. The large room was thirty by thirty feet in dimensions. There was a platform on the west side of the building with a door opening into both kilns. A wooden tramway led out of the door located in the middle of the north wall of the large kiln and extended the full length of the building. This tramway or walk was slightly less than six feet in width at the door of the large kiln, and widened to a little more than six feet about nine or ten feet from the doorway. There was an elevation of about a foot in this distance. A ventilator was located in the ceiling about the middle of the building, and an electric light was placed near the ventilator. Burlap was nailed along the west side of this tramway, extending from the door opening into the drying room for about nine or ten feet and at a height of two or three feet. The piece of burlap had laths along the top, which in turn were nailed to the side of the large kiln at the west side of the door and to an upright which was about nine feet north of the kiln. The burlap hung in a loose manner, 'not taut,' as the witnesses said; but neither did it sag materially.

The evidence shows that the purpose of putting the burlap along the west side of the tramway was to prevent the hops that were being pushed along the tramway from falling into the west bin. This testimony further shows that the hops were pushed along the tramway, and that, as they fell to the side of the sled as it was being propelled in a general northerly direction along the runway, then fell off the sled to each side. Those which fell to the west were pushed over against the burlap, which increased the pressure on the burlap, causing it to sag, and allowed a pocket to form immediately west of the western edge of the runway. At the time of the accident, the lower portion of the burlap was covered with hops to a depth of several inches.

In the afternoon of the day of the accident, respondent and three other men were directed to 'push' the big kiln; which meant moving the dried hops to the open bins where they remained Before baling. The work consisted of scooping the hops into a large wooden scoop and pushing them ahead over the tramway and then dumping the hops into a large bin on the east side of the walk. Respondent and his fellow workmen entered the kiln from an outside door and then proceeded to move the hops. Respondent and two others did the pushing, and the fourth man swept up after them. About fifteen or twenty minutes after the work commenced, and when the kiln was about one half or two thirds empty, respondent, after pushing a scoop full of hops out of the dry kiln along the tramway to a point about seven feet from the door, slipped and fell off the walk through the burlap to the floor twelve feet below. At that time the other workmen were inside the drying room and did not see the accident.

Respondent testified that he was about twelve inches west of the center line of the walk when he slipped and fell over the side, the upper part of his body striking the burlap first.

By its instructions the court withdrew from consideration by the jury the issue raised by the pleadings concerning any defect in the walk by reason of lack of railing or its being insufficiently supported. The only issue of negligence which the jury were permitted to consider was whether or not appellant had failed in her duty to properly instruct and warn respondent of dangers in the work which were not apparent to respondent, and in not providing him a safe place to work, by reason of the fact that the burlap allowed a deceptive situation to arise during the progress of the work which misled respondent into thinking that the walk was wider than it actually was. His contention of this appeal is that appellant was negligent in not warning him of the danger of slipping on the walk while pushing hops, and in nailing the burlap along the west side of the tramway in a position which allowed hops to pile up along its side during the progress of the work.

It is our conclusion that respondent assumed the risk of the dangers incident to his employment and was guilty of contributory negligence. It is a master's duty to furnish his servant with a reasonably safe place to work. This is a positive duty resting on the master by virtue of the relationship of master and servant and one which the servant can assume the master will meet. South v. Seattle, P. A. & W.

R. Co. v. Hall, 232 U.S. 94, 34 S.Ct. 229, 308, § 441, Master and Servant.

The reciprocal obligations of the master and the servant are well stated in Nordstrom v. Spokane & Inland Empire R Co., 55 Wash. 521, 104 P. 809, 811, 25 L.R.A., N.S., 364: 'When the relation of the master and servant is sustained, the law implies and fixes upon each certain duties and responsibilities, which are reciprocal in their nature. These duties, in so far as they relate to the case Before us, are that the master shall furnish the servant with a reasonably safe place in which to work, and shall take the precaution of an ordinarily prudent man in keeping the place reasonably safe. He shall furnish the servant with proper tools and appliances that are reasonably safe for the use required of them, and use ordinary care in so keeping them. He shall in case of any latent of hidden danger known to him and unknown to the servant apprise the servant of the existence of such danger...