Fink v. Dixon

• Decision Date: 23 June 1955
• Docket Number: No. 33131,33131
• Citation: 285 P.2d 557,46 Wn.2d 794
• Court: Washington Supreme Court
• Parties: Eugene FINK and Ardell Fink, his wife, Respondents, v. Clarence G. DIXON and Harold W. Ellefson, doing business as Commercial Truck & Automotive Repair Service, Defendants, System Tank Lines, Inc., a corporation, Appellant.

Page 794

46 Wn.2d 794

285 P.2d 557

Eugene FINK and Ardell Fink, his wife, Respondents, v. Clarence G. DIXON and Harold W. Ellefson, doing business as Commercial Truck & Automotive Repair Service, Defendants System Tank Lines, Inc., a corporation, Appellant.

No. 33131.

Supreme Court of Washington, Department 1.

June 23, 1955.

Joseph E. Hurley, Spokane, for appellant.

Donald L. Burcham, Spokane, for respondents.

OTT, Justice.

The defendants Clarence G. Dixon and Harold W. Ellefson are partners and operate the Commercial Truck & Automotive Repair Service (hereinafter referred to as Commercial), a small automotive repair shop in the city of Spokane.

On July 24, 1953, the defendant System Tank Lines, Inc. (hereinafter referred to as System), brought a tank truck and trailer to Commercial for repairs, which included the welding of two hose carrier brackets on the side of the trailer. A System work order, specifying the work to be performed, was sent with the equipment and contained a statement that the tank trailer had been steam cleaned for three and one-half hours.

The trailer, which had been used to haul gasoline, contained explosive fumes. While defendant Dixon was welding the hose carrier brackets on the side of the trailer, an explosion occurred which demolished it, and caused a concussion and noise felt and heard for several blocks.

Defendant System maintained its own truck repair shop, and normally would have done its own servicing and repairs. However, a few days prior to July 24th, it became involved in a labor dispute with the mechanics' union, which caused its repair shop to be closed. The shop superintendent, on behalf of System, entered into an agreement with Commercial to rent its garage and have the System mechanics work there. The work on the trailer involved in the explosion was being done by System employees. When they were ready to do the welding, none of the mechanics was familiar with the operation of the available electric welding machine. Defendant Dixon then agreed to do this part of the work as an accommodation.

At the time of the explosion, plaintiff wife, who was six months' pregnant, was visiting at a home near the repair shop. She described the incident as follows:

'* * * suddenly, we heard this terrific explosion. I looked down toward the floor expecting to see the floor drop out from under me and I grabbed the table right there holding my balance and the house shook and the windows shook and dishes rattled and everything and it was a terrific occurrence for me. * * *

'Q. Did that frighten you? A. Yes, definitely.

'Q. Did you feel any physical sensation at that time? A. Yes, the baby somersaulted, that may be my term, that is what he did, and he dropped. * * * it left me feeling weak and everything came up in my throat. I was sick to my stomach and I was dizzy and it just unnerved me completely.'

From July 24th, the date of the explosion, until August 4th, when the baby was born prematurely, plaintiff wife suffered anxiety and ill health. It was necessary for the baby to remain in the hospital for seven and one-half weeks, during which time he was in an isolette. At the time of the trial, the boy, then nine months old, had progressed satisfactorily, although it was stated that he was still weak, frail, and underweight.

The jury returned a verdict in favor of the plaintiffs and against defendant System. The trial court entered judgment upon the verdict, and System has appealed.

Appellant assigns error to the rulings of the trial court denying appellant's motions (1) for nonsuit, (2) for a directed verdict at the close of the trial, and (3) for judgment notwithstanding the verdict.

In making the above motions, the moving party admits the truth of the evidence of the party against whom the motions are made, and all inferences that reasonably can be drawn therefrom. Such motions require that the evidence be interpreted most strongly against the moving party and in the light most favorable to the opposing party. Fedland v. Teshera, 1952, 40 Wash.2d 256, 260, 242 P.2d 751, and cases cited; Kemalyan v. Henderson, Wash.1954, 277 P.2d 372, and cases cited.

Likewise, this court has held that, in ruling upon a motion for a directed verdict or for judgment notwithstanding the verdict, no element of discretion is involved and the trial court can grant such motions only when it can be held, as a matter of law, that there is no evidence nor reasonable inference therefrom to sustain a verdict. Kemalyan v. Henderson, supra, 277 P.2d 372, and cases cited.

Appellant contends that it was not negligent, as a matter of law, and that the court should have so ruled. In order to find that appellant System was negligent, it must be proved that it performed or failed to perform some act which a reasonably prudent person would or would not have done under the same or similar circumstances. Malland v. Sims, 1933, 173 Wash. 649, 653, 24 P.2d 70, 27 P.2d 1119, and cases cited; Severns Motor Co. v. Hamilton, 1950, 35 Wash.2d 602, 604, 214 P.2d 516, and case and text cited; LaMoreaux v. Fosket, Wash.1954, 273 P.2d 795.

Appellant System had had the inside of the trailer steam cleaned the night before it was sent to Commercial to have the welding done. Would a reasonably prudent person, under the same or similar circumstances, have done more than this? According to the testimony of several expert witnesses, steam cleaning is only a preliminary step in the process of eliminating gasoline fumes from a tank of this type. Appellant System's own superintendent testified that the tank exploded because it had not been 'degassed' and was not ready for welding. Further, defendant Ellefson testified as follows concerning a conversation with System's garage foreman:

'And, then, I asked him also, 'Well, is the thing safe to weld on, have you degassed it? and he said, 'Yes,' and I said, 'Well, is there any other procedures that you use to safeguard the equipment?' And he said that normally they used blowers and so forth like that, and I told him, 'Well, we don't have anything like that, we just throw the garden hose in it and fill it...