Green v. Pyne

• Decision Date: 07 May 1923
• Docket Number: 3793.
• Parties: GREEN v. PYNE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

289 F. 929

GREEN v. PYNE.

No. 3793.

United States Court of Appeals, District of Columbia.

May 7, 1923

Submitted October 27, 1922.

Appeal from the Supreme Court of the District of Columbia.

T Morris Wampler, of Washington, D.C., for appellant.

Henry E. Davis, of Washington, D.C., for appellee.

Before SMYTH, Chief Justice, ROBB, Associate Justice, and MARTIN Judge of the United States Court of Customs Appeals.

ROBB Associate Justice.

Appeal from a judgment in the Supreme Court of the District in an action for personal injuries sustained by the plaintiff appellant here, in falling from a third-story window sill while engaged in washing the window.

Plaintiff, whose 'usual work was whitewashing fences, cleaning windows, and doing odd jobs,' entered into a contract with the defendant in June of 1919 'to clean the windows of her residence, 1702 S. Street Northwest, Washington, D.C., once a month for a period of one year. ' The defendant reserved the right to discharge him at any time and specified the hours when the work should be performed. There was no evidence that she exercised any supervision over him or controlled in any way the manner in which he should perform the work.

During the last week of the month of June plaintiff washed defendant's windows for the first time--

'and on this occasion the witness raised the lower sash of the large window (from which he subsequently fell), and the same remained elevated while he stood on the outside of the window on the sill and washed the outside of the upper sash, which was fastened or nailed, so that he could not lower it, and that he experienced no difficulty with the window on this occasion.'

On July 25th, following, plaintiff again undertook to wash the windows, and in washing the window in question--

'he raised the lower sash to a point so that the lower end of the lower sash was within six inches of the lower end of the upper sash, got on the outside of the window, standing on the sill, and holding to the lower end of the upper sash with one hand, and washing the glass with the other. While thus cleaning the window on the third floor front, having cleaned the two small windows on either side of the large window, all three constituting a bay window, and while cleaning the third or large window, the inside or lower sash, which was raised as aforesaid, fell with great force, striking his hand and breaking his hold on the lower end of the upper sash, the window continued to the base of the sill, and struck the sill with such force as to jar his feet, and that the breaking of his hold and the jarring when the window struck the sill caused him to fall from the window to the ground.'

According to the plaintiff's testimony, at no time did he look to see whether there were any window cords on the inner or lower sash of the window. He stated, during his cross-examination, 'that he had no difficulty in raising the inner or lower sash,' and, when asked whether he could explain why the sash did not fall on the occasion when he first washed the window, replied that 'luckily it stuck.'

There was evidence tending to show that for several years, to the defendant's knowledge, there had been no cords in the window in question, and that plaintiff was not informed of that fact. The defendant contends that the action of the trial court in directing a verdict is sustainable upon two grounds: First, that upon the facts disclosed plaintiff was an independent contractor; and, second, that, assuming the relationship of master and servant to have existed, plaintiff was guilty of contributory negligence as matter of law. We do not find it necessary to discuss or decide the question presented by the first contention.

Proceeding upon the theory that the relationship of master and servant existed, the rule that it is the duty of the master to provide for his servant reasonably safe surroundings,-- that is, a reasonably safe place in which to work (Carter v. McDermott, 29 App.D.C. 145, 10 L.R.A.(N.S.) 1103, 10 Ann.Cas. 601; Gibson v. Gernat, 50 App.D.C. 3, 267 F. 305)-- is not determinative of the question whether the plaintiff, under the facts disclosed, was chargeable with contributory negligence.

Plaintiff was an experienced window washer, and the evidence indicates that he was engaged as such by the defendant. Defendant was concerned solely with the result of the work, and not as to the manner or means of accomplishment. As to this the plaintiff was a free agent. When he approached this large third-story bay window it was for him to decide, after inspection, how he should do this particular part of his work, and what safeguards he should adopt for his own protection. He knew or should have known that to stand on a window ledge and depend for his safety upon a hold by one hand was in any aspect a dangerous undertaking. Certainly, before subjecting himself to the dangers inherent in such a situation, common prudence dictated that he should have made a careful inspection of the window, to the end that precautions be taken against the possibility of the window falling in the manner detailed. When he found that the upper sash was fastened, it was his duty, if he could not release it, to bring the matter to the attention of the defendant, that she might have it released. The discovery of its condition certainly did not justify him in exposing himself to the dangers incident to standing on the narrow window ledge, without first making sure that there would be no interference with his hold.

While plaintiff testified that he 'did not look to see' whether there were any cords in the window, it is inconceivable that, had he permitted his senses to function, he would not have discovered the absence of the cords. The evidence shows that the lower sash of this window was almost four feet square, and, according to the plaintiff's testimony, it moved freely until near the top. On the first occasion, he not only raised this heavy window, but must have lowered it when his work was finished. It is common knowledge that such weights are attached to the cords as will properly balance the weight of the window and thus minimize the difficulty of raising and lowering it. The raising and lowering of this window on the first occasion and the raising of it again on the second occasion inevitably must have demonstrated to this plaintiff the absence of the cords and weights, or that something was wrong. There is no suggestion that the defendant directed or authorized the plaintiff, who presumably was in a far better position than she to appreciate the danger, thus to expose himself. He alone was responsible for his failure to exercise common prudence, and this conclusion is fully supported by the authorities.

In Haskell v. Kurtz Co., 181 Iowa, 30, 162 N.W. 598, L.R.A. 1917F, 881, the facts were almost identical with those here. The upper sash was so gummed with paint that it could not be lowered by the window washer without the use of some tool. Without consulting his employer, he got out upon the narrow window ledge, as did the plaintiff here, and the lower sash broke his hold, causing him to fall. The court ruled that the danger was so self-evident that no duty devolved upon the defendant to warn the plaintiff, and hence that the plaintiff was guilty of contributory negligence. The court said:

'This plaintiff is an adult of more than average intelligence. When he found a window that would not lower, no warning given in advance would have made that fact more patent. No skill or experience was required to bring home to him that he was unable to lower the sash. No advance warning would have made clearer than it was to any human being with ordinary faculties and power to reason that it was dangerous to meet the inability to lower the sash by stepping upon a six-inch ledge placed just below the second story of a building. * * * We are constrained to hold that one who finds that he cannot lower a window so that he may wash the same from inside the room, deliberately steps upon a ledge six inches wide, from which a fall to the street below will work great injury, with no precaution save the hold which plaintiff took, is in no position to recover for an injury which results, even though, had there been due care on the part of the employer, the plaintiff would have had no occasion to leave safety on the inside for clearly apparent danger on the outside. * * * There need be no warning against what should be evident to one possessed of ordinary intelligence.'

The court carefully reviewed the authorities which fully sustained the position taken.

Brandon v. Globe Inv. Co., 108 Wash. 360, 184 P. 325, is another apposite case, wherein the facts are almost identical with those here, the only difference being that there the casing fitted so loosely that the window pulled through or by the casing, causing the plaintiff to fall. While there was no evidence in that case that the...