Greenleaf v. Puget Sound Bridge & Dredging Co.

• Decision Date: 07 September 1961
• Docket Number: No. 35556,35556
• Court: Washington Supreme Court
• Parties: Glen B. GREENLEAF, Appellant, v. PUGET SOUND BRIDGE AND DREDGING COMPANY, a corporation, Respondent.

Page 647

58 Wn.2d 647

364 P.2d 796

Glen B. GREENLEAF, Appellant, v. PUGET SOUND BRIDGE AND DREDGING COMPANY, a corporation, Respondent.

No. 35556.

Supreme Court of Washington, Department 1.

Sept. 7, 1961.

Reaugh, Hart & Allison, Robert B. Allison, Gayle Barry, Seattle, for appellant.

Walsh & Margolis, Seattle, for respondent.

FOSTER, Judge.

In his personal injury action, Glen B. Greenleaf appeals from a judgment for the defendant notwithstanding the verdict in his favor. The respondent, defendant below, was the prime contractor with the United States for the construction of a naval vessel. Appellant Greenleaf was an employee of the respondent's subcontractor. Respecting personal injuries in extrahazardous employment, the industrial insurance act affords immunity to the employer only. It is not a bar to an action against a negligent third party. ¹

The sole ground of negligence upon which the cause was submitted to the jury by an instruction ² was the failure of the defendant to provide adequate lighting. The adequacy of the evidence to support appellant's verdict on that point is the sole issue here. ³

Appellant was insulating pipes in the vessel's boiler room. On the occasion in question, to obtain necessary insulating material, appellant was required to use a catwalk, a section of which, only moments before, had been removed by another workman. Appellant testified that the open section in the catwalk could not be observed by him because of darkness. The negligence claimed is the failure of the prime contractor, the respondent herein, to provide a safe place to work and not the negligence of the workman in temporarily removing the grating. The motion for judgment notwithstanding the verdict was granted for the sole reason that there was, in the court's view, no evidence to show basic negligence by respondent, specifically that there was no proof that the respondent was negligent in failing to provide and maintain proper lighting.

Appellant testified that his station was illuminated but that the open catwalk section was dark. There was testimony that over that unlighted cavity there was an empty light socket suspended on a pigtail from a temporary line. It is without substantial dispute that all temporary lighting facilities had been provided by the respondent.

The duty owing by a master to his own servant is to provide a reasonably safe place in which to work, which duty cannot be avoided by delegation. Arnold v. United States Gypsum Co., 44 Wash.2d 412, 414, 267 P.2d 689, 690, stated such duty as follows:

'It was the duty of appellant to furnish respondent with appliances and instrumentalities that were reasonably safe for the use required of them, and to maintain them in a reasonably safe condition. Graaf v. Vulcan Iron Works, 59 Wash. 325, 109 P. 1016; Myers v. Little Church by the Side of the Road, 37 Wash.2d 897, 227 P.2d 165; 35 Am.Jur. 569, § 138.

'Appellant was entitled to assume, in the absence of notice to the contrary, that the chair was safe for normal use. King v. Griffiths-Sprague Stevedoring Co., 45 Wash. 425, 88 P. 759.'

The relationship of master and servant did not exist between the parties. Appellant was the employee of respondent's independent contractor. What duty is owed by the contractee to the workmen of its independent contractor?

The rule applicable under such circumstances was recently stated by the supreme court of Maine in Jenkins v. Banks, 147 Me. 438, 87 A.2d 908, 910:

'Where the contractee undertakes to provide any of the instrumentalities with which the work is to be carried on, he owes to the contractor and the latter's employees the duty of exercising reasonable care with respect thereto. 27 Am.Jur. Page 509, § 30. See 44 A.L.R. 891, note.'

Meyers v. Syndicate Heat & Power Co., 47 Wash. 48, 91 P. 549, 551 pronounces the same result:

'* * * But, in the absence of such express authority, the rule is that the servant of an independent contractor engaged in work for the contractor on the premises of the proprietor is deemed to be thereon by invitation of the proprietor, and the proprietor owes him the same duty to provide for his safety that it owes to the contractor himself, namely, that he will maintain the premises in a reasonably safe condition for the uses the contractor or servant is entitled to make of them, and will not expose him to hidden dangers of which he is not aware, but which are known to the employer. Thompson on Negligence, §§ 680, 968, 979; John Spry Lumber Co. v. Duggan, 80 Ill.App. 394; Bennett v. Railroad Co., 102 U.S. 577, 26 L.Ed. 235. So in this case, if the respondent's version of the occurrences is to be believed, the appellant owed the respondent the duty of either covering or guarding the tank into which he fell, or giving him timely warning of its existence, and, failing in this, it rendered itself liable for the injuries received by him.'

The United States court of appeals for the Fifth Circuit in Corban v. Skelly Oil Co., 256 F.2d 775, 780, stated the point in the following language:

'The employer of an independent contractor is under a duty to exercise reasonable care to maintain its premises and equipment to be furnished by it in safe condition for use and is liable for injuries to an employee of the independent contractor resulting from its failure to do so. Sunray Oil Corporation v. Allbritton, 5 Cir., 1951, 187 F.2d 475, 188 F.2d 751, certiorari denied 342 U.S. 828, 72 S.Ct. 51, 96 L.Ed. 626. * * *'

The decisional law elsewhere is in accord. ⁴

Therefore, there can be no question that respondent owed to appellant a nondelegable duty to maintain the work premises is safe condition for his performance of his job. Respondent's contention that the vessel was owned by the United States Government, and that respondent therefore owed no duty to appellant is groundless. Assuming arguendo that the vessel was owned by the United States, nevertheless, respondent prime contractor had complete control over it.

The question finally to be answered then is: Was there any evidence from which the jury could have found that respondent was negligent, and that such negligence was a proximate cause of appellant's injury?

The law applicable to the particular facts herein was well stated in Crawford v. Duluth, Missabe & Iron Range R. Co., 220 Minn. 225, 230, 19 N.W.2d 384, 388:

'* * * The duty of furnishing a safe place to work includes that of furnishing light when necessary to make the place where the work is being done reasonably safe. * * *

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'The rule is applicable in connection with construction work, where it is feasible to furnish light. In Bausert v. Thompson-Starrett Co., 126 App.Div. 332, 110 N.Y.S. 521, it was held that a master engaged in the construction of a large building owes his employes the duty of lighting the place so as to enable them to observe dangers.

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'* * * Here, defendant * * * was able by taking reasonable precaution to prevent accidents by providing proper light. * * * If adequate light had been furnished decedent might have been able to observe the defents, if any, in the tie on which he slipped causing him to fall. See, Bruns v. Northern Iowa Brick & Tile Co., 152 Iowa 61, 130 N.W. 1083, supra. Because there is evidence to show that defendant furnished inadequate light and that the failure properly to light might have been the cause of decedent's failure to observe the condition of the tie on which he stepped, defendant's negligence was a fact question for the jury.'

In Bruns v. Northern Iowa Brick & Tile Co., 152 Iowa 61, 130 N.W. 1083, 1085, the court said:

'If conditions existed at the time plaintiff went to work about the overhanging clay which created the danger, or if they afterwards arose, and such conditions and dangers would ordinarily be discovered with reasonably sufficient light, the failure to furnish such light might be the proximate cause of the injury. * * *' (Emphasis supplied.)

The Iowa court indicated that such is a jury question.

Furthermore, in Prickett v. Sulzberger & Sons Co., 57 Okl. 567, 157 P. 356, 365, the court held:

'As to the necessity, character, and amount of light which ought to be furnished it is invariably held to be a question for the jury to determine whether the defendant was negligent. * * *' ⁵ From our examination of the record, we cannot say that the verdict is unsupported by the evidence. There was evidence in the record that the light furnished by respondent was not sufficient to conform to the standard of reasonable care and that such was a proximate cause of the injury. While there was evidence to the contrary, the weight and credibility of such evidence was for the jury, and not for either the trial court or this court. There was substantial evidence upon which the jury could find that there was negligence by respondent which was a proximate cause of appellant's injury. The jury did so. The judgment notwithstanding the verdict is, therefore, erroneous.

Respondent raises the argument, however, that there was an independent intervening act of negligence which caused appellant's injury--that of appellant's fellow workman who raised the section of catwalk but a moment before appellant walked into the area and fell through the opening. Respondent contends, therefore, that its negligence was not a proximate cause of the injury, and that it is, therefore, not liable. We do not agree.

The jury justifiably could have found, and appears so to have found, that appellant's injury was the result of both the workman's removal of the section of catwalk and respondent's failure to supply adequate light, and that the injury would not have occurred without the concurrence of both.

In Eckerson v. Ford's Prairie School District No. 11, 3 Wash.2d 475, 101 P.2d 345, 350, this court quoted from the Restatement of the Law of Torts, 1184, § 439, as follows:

"If the effects of the actor's negligent conduct actively and continuously operate...