Dawes v. McKenna, 10718

• Decision Date: 14 December 1965
• Docket Number: No. 10718,10718
• Citation: 100 R.I. 317,215 A.2d 235
• Parties: Ella DAWES v. John W. McKENNA et ux. Ex.
• Court: Rhode Island Supreme Court

Page 235

215 A.2d 235

100 R.I. 317

Ella DAWES v. John W. McKENNA et ux.

Ex. No. 10718.

Supreme Court of Rhode Island.

Dec. 14, 1965.

Corcoran, Foley, Flynn & Treanor, George F. Treanor, Pawtucket, for plaintiff.

Higgins, Cavanagh & Cooney, Joseph V. Cavanagh, Providence, for defendants.

ROBERTS, Justice.

This action of trespass on the case for negligence was brought to recover damages for injuries sustained by the plaintiff who, while employed as a domestic servant by the defendants, slipped on an icy walk at the rear of the house where she was thus employed. The case was tried to a justice of the superior court sitting with a jury, and a verdict was returned for the plaintiff in the amount of $4,500. The court thereafter denied the defendants' motion for an unconditional new trial but ordered a new trial on the issue of damages only unless the plaintiff remitted all of the verdict in excess of $3,000. Such a remittitur was filed by the plaintiff, but the defendants have prosecuted a bill of exceptions to this court including that taken to the denial of their motion for a directed verdict, the denial of their motion for an unconditional new trial, and the refusal to instruct the jury according to requests therefor made.

It appears that plaintiff was employed at the home of defendants on Wednesday and Friday of each week doing cleaning and maintenance work. In the course of these activities she was required occasionally to empty the contents of the wastebasket into an incinerator located in a rear yard. To do this she would leave the house by way of a rear door, cross a driveway, and pass through a gate into that part of the yard where the incinerator stood. It is not disputed that on March 7, 1962 at a time when the driveway and the rear yard were covered with a substantial accumulation of frozen snow and ice plaintiff, while carrying a wastebasket to the incinerator, slipped on ice in the driveway and fell, causing injury for which she now seeks damages.

The common-law principles governing the liability of a master for injury sustained by his servants are applicable generally to cases involving injury to domestic servants, and accordingly a master is required to exercise reasonable care to provide such servants with reasonably safe places in which to work. See cases collected in Annot., 49 A.L.R.2d 317, 320. This view was stated by this court in Collins v. Harrison, 25 R.I. 489, 56 A. 678, 64 L.R.A. 156, and reiterated in Hawkins v. Leach, 88 R.I. 98, 143 A.2d 689. In the latter case we held that an employer of a domestic servant may be liable for the injury of such servant when it results from his failure to exercise reasonable care for the servant's safety while engaged in the scope of the employment, so long as the servant has not assumed the risk of the danger in question and is not guilty of negligence that contributes to his injury.

While there is authority to the contrary, it is our opinion that in appropriate circumstances the obligation to furnish a reasonably safe place in which the servant may work extends to outside walks or passages rendered dangerous by accumulations of ice or snow. Many cases which upon examination appear to hold to the contrary are distinguishable in that the walks or passages where the snow or ice accumulated were not in fact areas within which the servant was required to work, usually being walks used for ingress and egress or other incidental purposes not work connected.

In the instant case, however, the walk upon which plaintiff fell was part of defendants' premises within which her duties were to be performed, in part at least. Therefore, it was the duty of defendants to keep it reasonably safe for such use. Faltinali v. Great Atlantic & Pacific Tea Co., 55 R.I. 438, 182 A. 605. That plaintiff may not have been required to empty the basket in times of inclement weather is not material here, the fact being that she made use of the walk in the performance of her duties at the time she was injured by the fall. If that fall was a result of defendants' failure to act reasonably to keep the walk safe for such use, they are liable for her injury unless she had assumed the risk of that condition as being part of her employment or was so negligent in using the walk as to contribute to her own injury. Boettger v. Mauran, 64 R.I. 340, 12 A.2d 285.

We are unable to agree with defendants' contention that the court erred in submitting the question of their negligence and plaintiff's contributory negligence to the jury. In the state of the evidence here the questions whether defendants acted reasonably to keep this portion of the premises safe for the pertinent use and whether plaintiff acted reasonably in using the path in the light of her knowledge of its icy condition were, in our opinion, properly submitted to the jury.

The defendants' contention that plaintiff was contributorily negligent as a matter of law rests upon her action in using the walk, knowing of its icy condition. This, they contend, was not the action of a reasonably prudent person in the same circumstances. Primary reliance is placed upon plaintiff's testimony that as she entered the yard to go to the incinerator, she saw the icy pavement and noticed that it was not sanded. She testified also: 'I had been over it before and I thought I could go over it again because I was doing my work.' When asked if at that moment she had 'decided to take a chance,' she replied: 'I didn't think it was going to be a chance, I thought I was going to get through.' We cannot accept the contention that this establishes that plaintiff was contributorily negligent as a matter of law. To the contrary, it is our opinion that a trier of the fact could reasonably reach different conclusions on this evidence.

It is our conviction after an examination of the evidence that this case falls within the view taken in Matthiessen v. Adrian, Sup., 110 N.Y.S.2d 830, affirmed in 306 N.Y. 694, 117 N.E.2d 639. In that case the court said: 'The master's knowledge of the dangerous condition imposed a duty to use reasonable care to make the place of work safe. The servant's knowledge placed no such duty on her. Her duty, so far as the question of contributory negligence is concerned, was only to exercise due care for her safety. The duty of the master and the duty of the servant under the circumstances were not the same, so the jury could very well hold that the master failed in his duty and that the servant did not fail in her duty.' The evidence as it stands here raises similar questions, and these issues were properly submitted to the jury.

The defendants contend further that the court erred in submitting the question of their liability to the jury because plaintiff had 'voluntarily assumed a known and obvious risk.' This, as we understand it, is to invoke the doctrine of assumption of risk which arises out of the relationship of employer and employee. It is a defense to liability on the part of the employer that differs entirely from the rule of contributory negligence in these cases. See Geis v. Hodgman, 255 Minn. 1, 95 N.W.2d 311. Either doctrine may be invoked for the purpose of defeating liability even though the negligence of the employer in failing to provide a safe place to work has been established. While the doctrines are not mutually exclusive, that of assumption of risk properly is...