Garner v. Pacific Coast Coal Co.

• Decision Date: 11 March 1940
• Docket Number: 27760.
• Citation: 100 P.2d 32,3 Wn.2d 143
• Parties: GARNER v. PACIFIC COAST COAL CO. et al.
• Court: Washington Supreme Court

100 P.2d 32

3 Wn.2d 143

GARNER v. PACIFIC COAST COAL CO. et al.

No. 27760.

Supreme Court of Washington

March 11, 1940

Department 2.

Suit by Noah Garner, as guardian ad litem for Anita Huovar and Geneva Almira Garner, against the Pacific Coast Coal Company and another for personal injuries suffered by minors. From a judgment on a verdict for named defendant notwithstanding verdict for plaintiff, plaintiff appeals.

Affirmed.

Appeal from Superior Court, King County; James B. Kinne, judge.

Adams &amp Smith and George F. Hannan, all of Seattle, for appellants.

Green &amp Burnett, of Seattle, for respondents.

STEINERT Justice.

Plaintiff as guardian ad litem for two minor girls, brought suit against two corporations, Pacific Coast Coal Company and The Pacific Coast Company, to recover damages for injuries sustained by the minors while walking across certain lands allegedly owned by defendants. At the conclusion of his case, plaintiff took a voluntary nonsuit as to Pacific Coast Coal Company, and the trial proceeded upon the defense of The Pacific Coast Company. As against the latter defendant, the jury returned a verdict in favor of plaintiff on both of his causes of action. Defendant The Pacific Coast Company thereupon moved for judgment notwithstanding the verdict and, in the alternative, for a new trial. The motion for judgment notwithstanding the verdict was granted. The alternative motion for new trial also was granted, upon two specific grounds: (1) that the court erred in giving certain instructions, and (2) that the amounts of the verdict were excessive. The court, however, further ordered that if plaintiff should consent to a reduction of the amounts stated in the verdict, the motion for new trial on the second ground would be denied. Plaintiff filed his written consent to such reduction, and the court, by its order, thereupon granted a new trial solely on the first ground of the motion. Judgment for defendant was entered accordingly, from which plaintiff has appealed.

For convenience, we shall refer to the two minor girls as appellants, and to The Pacific Coast Company as respondent.

This appeal presents two questions: (1) whether the trial court erred in holding, as a matter of law, that the evidence was insufficient to support appellants' causes of action, and (2) if the court erred in that respect, whether there was error in the particular instructions given.

A determination of the first question necessitates an understanding of the facts, considered in the light most favorable to appellants. Jordan v. Skinner, 187 Wash. 617, 60 P.2d 697.

Respondent in 1918 or 1919 acquired, and is still the owner of, a large tract of land of several thousand acres about one-half mile south of the city of Issaquah, and lying between the present Hobart-Issaquah road and Issaquah creek. Respondent's predecessor in interest had used this land, in the vicinity with which we are here concerned, as a place for 'dumping' or depositing débris and waste material resulting from its coal mining operations conducted on, or adjacent to, the premises. In the course of time, covering a period of thirty years or more, the cumulation of these deposits had formed an irregularly shaped mound or knoll about seven hundred feet in length and from about eighty to two hundred feet in width, extending across the land from what is now the improve Hobart-Issaquah road to Issaquah creek. Along its course, the mound, which is referred to as, and in fact was, a refuse dump, was broken by depressions and undulations; its highest point of elevation was about twenty feet.

Respondent ceased to work its mines in that area about the year 1923 or 1924, but there was some evidence in the case, though slight and of an uncertain and unsatisfactory nature, that, prior to that time, it had deposited on the refuse dump waste material hauled from its mine located approximately a thousand feet distant from the particular land, and on the opposite side of Issaquah creek. However, we shall consider that evidence as sufficient to make that phase of the case a question for the jury and as constituting a fact established by the verdict.

As a result of the disuse of the refuse dump and through a process of disintegration, a layer of soil had formed on the surface of the mound, over which had grown grass, vines, bushes, and even trees in certain places. To the casual observer the mound had the appearance of a natural hill or knoll, but to the experienced eye of a coal operator it would be apparent that it was an old refuse dump.

It is undisputed that refuse from coal mines, when dumped together in large quantities, is subject to spontaneous compbustion, and that such combustion may take place at any time within fifty years, or more, after a dump has been abandoned. The greater the amount of impurities contained in the refuse deposits, the greater is its potentiality for spontaneous combustion. The waste material forming this particular dump consisted of coal-slack, pyrite, slate, and shale, which are found in low grade sub-bituminous coal deposits, and among the ingredients of which are clay, lime and sulphur; these ingredients tend to produce slow oxidation. Such a dump may lie inactive or dormant for many years and then develop a condition that may be hazardous to anyone walking over it.

For at least thirty years, a path or trail ran along and over the refuse dump, between the present Hobart- Issaquah road and Issaquah creek. The path was two or three feet in width, was well beaten and was easily discernible. In years gone by, residents of the surrounding area had been in the habit of using the path for purposes of ingress and egress over the land and, more recently, for the purpose of visiting the state fisheries dam and hatchery now located on Issaquah creek. Respondent neither prohibited nor warned persons against use of the path or crossing of the premises, which for years has been wild, unoccupied land.

On July 24, 1938, appellants, who were then sixteen years of age, were returning from a social call in the vicinity of Issaquah creek, and were walking along the path over the refuse dump, toward Issaquah. Suddenly the top of the path gave way, causing them to fall, or sink, to a depth of several feet into a bed of hot cinders, as a result of which they sustained serious injuries to their hands and feet. There was no smoke nor flames, nor odor issuing from the refuse dump to indicate that there was fire underneath, nor was there any burned surface area in the vicinity.

So far as the record shows, that fortuity was, with one exception, the only instance wherein fire, resulting from spontaneous combustion or otherwise, had ever taken place within the dump. Two witnesses, however, testified that in 1926 a horse belonging to one of them had broken through the crust of the path andhad been severely burned. There is no contention, however, that respondent ever heard or knew anything about that occurrence.

Respondent introduced evidence tending to prove that it had no knowledge of either the character of the mound or of the trail leading over it. Its evidence was also to the effect that the refuse composing the dump, at the place where the accident occurred consisted of pea coal, which is not readily subject to spontaneous combustion, and which, when ignited, would be entirely consumed within a month or two. As stated, however, the evidence is to be considered in the light most favorable to appellants and, upon that basis, we are of the opinion that it was sufficient to warrant the jury in finding that respondent had knowledge of the refuse dump and its composition and...