Highland v. Wilsonian Inv. Co., 24118.

Decision Date28 December 1932
Docket Number24118.
Citation171 Wash. 34,17 P.2d 631
PartiesHIGHLAND et al. v. WILSONIAN INV. CO.
CourtWashington Supreme Court

Department 2.

Appeal from Superior Court, King County; William J. Steinert, Judge.

Action by Anders Highland and others against the Wilsonian Investment Company. Judgment for plaintiffs, and defendant appeals.

Affirmed.

John W Heal, Jr., and Poe, Falknor, Falknor & Emory, all of Seattle for appellant.

Vanderveer & Bassett, of Seattle, for respondents.

TOLMAN C.J.

This is an action for personal injuries sustained by plaintiff Lena Highland, and claimed to be the result of negligence of the defendant. A verdict was returned for plaintiffs, upon which judgment was entered. Defendant appeals.

The appellant is the owner of property known as the Wilsonian Hotel, located on University way in Seattle. A portion of the ground floor was leased to Helen Swope, who operated a restaurant known as the Via Fontana. The entrance to the restaurant was reached by a tile walk, about forty feet long from University way. Over and about ten feet above this walk was a glass roof or marquise.

The ground floor of the leased premises was divided into a dining room and kitchen. Over the kitchen, and about ten feet above it, was a mezzanine floor, which was divided into several rooms by partitions which did not reach the ceiling. These rooms were off a hall, about four feet wide by twenty in length, at one end of which was a room used as a bakery in connection with the restaurant. At the other end of the hall was a room in which was located an ammonia ice machine. By the terms of the lease, however, this ice machine was retained under the exclusive control and supervision of appellant, the lease providing: 'The lessee shall not interfere, or with her knowledge, permit others in or about the demised premises to in any manner interfere, with the refrigeration * * * or the appliances for applying the same. * * *'

On August 2, 1930, a plug or nipple blew out of the crankcase of the ice machine. Almost immediately ammonia fumes permeated the bakery and kitchen. At the time Jane Damon was working in the bakery and respondent Mrs. Highland, Iva Zieke, and Herman Houson were working in the kitchen, all of whom were employees of Helen Swope.

The ammonia fumes were so strong that Mrs. Damon wrapped a towel around her head and went downstairs into the dining room. The others left the kitchen and also went into the dining room for the same reason. Mrs. Damon had heart trouble, which all the others knew about. That morning she had said that she was not feeling well. Mrs. Damon went to the door of the dining room for fresh air, and, while she was there, she was having trouble breathing. Mrs Zieke thought she was having a heart attack, and gave her a glass of water. After a few minutes, Mrs. Damon remarked that something in the oven might burn, and then left the dining room. A few minutes later the others became alarmed about her, and asked Raymon, a Filipino boy, to go up and see if she was all right. Raymon refused to go. Mrs. Highland then went to the kitchen, shut the door of the ice box from which fumes were coming, turned off the gas stove, and then went up to the bakery, where she found Mrs. Zieke and Houson, who had preceded her. All three testified they were prompted to go to the bakery by the fear that Mrs. Damon might have been overcome by the ammonia fumes.

The fumes were so bad in the bakery that a window which hung on hinges, attached to the lower sill, was opened wide to let in air. The bottom of this window, which was thirty-three inches high and forty-four inches wide, was close to the floor, and, when opened wide, the window was held parallel to the floor by chains attached to the side sashes at the top. The window opened onto the glass roof, or marquise, over the walk leading from University way to the entrance of the Via Fontana.

To escape the fumes Mrs. Zieke stepped through the window onto the marquise. Shortly after, for the same reason, Mrs. Highland followed her. The glass broke under the weight of Mrs. Highland, and she fell through to the walk below, sustaining the injuries here complained of.

The appellant challenged the sufficiency of the evidence at the close of the respondents' case; also at the close of all the testimony, and interposed a motion for judgment notwithstanding the verdict. The only assignments of error go to the denials of the challenges and the motion for judgment notwithstanding the verdict, no motion for new trial having been interposed.

The contentions of appellant may be classified under three heads: (1) There was no proof of negligence; (2) the blowing out of the nipple in the ice machine was not the proximate cause of the injuries; and (3) Mrs. Highland was guilty of contributory negligence as a matter of law.

1. The evidence showed that the ice machine was under the exclusive control and supervision of appellant. It is pointed out that appellant's manager testified that Helen Swope and her employees tampered with the machine. There is no proof of any fact which supports this assertion. There is nothing to indicate how or when they tampered with it. Nor was there any evidence offered that tended to show how or why the nipple blew out except that offered by respondents to the effect that the nipple was old, rusty, and cross-threaded. This nipple plugged an aperture in the crankcase where the oil was drawn off. Nobody but the agents of appellant ever had occasion to touch it; and the record does not show that anybody else ever did touch it.

The rule, under such circumstances, is: 'When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.' 1 Shearman & Redfield on Negligence (6th Ed.) § 59; Wodnik v. Luna Park Amusement Co., 69 Wash. 638, 125 P. 941, 942, 42 L. R. A. (N. S.) 1070.

Proof of regular inspection of the machine still leaves the question of negligence one for the jury. Lane v. Spokane Falls & Northern Railway Co., 21 Wash. 119, 57 P. 367, 46 L. R. A. 153, 75 Am. St. Rep. 821. The presumption is overcome as a matter of law only when the explanation shows, without dispute, the happening was due to a cause not chargeable to defendant's negligence. Scarpelli v. Washington Water Power Co., 63 Wash. 18, 114 P. 870.

Nor does the allegation and proof of specific negligence deprive a plaintiff of the benefit of the rule. Walters v. Seattle, Renton & Southern R. Co., 48 Wash. 233, 93 P. 419, 24 L. R. A. (N. S.) 788; Kluska v. Yeomans, 54 Wash. 465, 103 P. 819, 132 Am. St. Rep. 1121. There is nothing said in the case of Anderson v. Northern Pacific R. Co., 88 Wash. 139, 152 P. 1001, L. R. A. 1917F, 1020, which conflicts with the foregoing statement of the rule. It is true language was used in Osborne v. Charbneau, 148 Wash. 359, 268 P. 884, 64 A. L. R. 251, which might be construed in conflict with the above statement, but it was unnecessary to the decision, and is clearly obiter.

2, 3. The questions of proximate cause and contributory negligence can be better discussed together than separately.

The contention is that, Mrs. Highland, Mrs. Damon, Mrs. Zieke, and Houson having escaped the fume-laden air of the kitchen and bakery, and having reached a place of safety, the proximate and intervening cause of the injuries was Mrs. Damon's return to the place of danger; i. e., the bakery. It is also contended that, in following her for the purpose of rescue, Mrs. Highland was guilty of contributory negligence as a matter of law.

The proximate cause is the cause without which the accident could not have happened. Wodnik v. Luna Park Amusement Co., supra. What caused Mrs. Highland to step out on the marquise was the presence of ammonia fumes in the bakery. The ammonia fumes were in the bakery because the plug or nipple in the crankcase of the ice machine blew out. The nipple blew out because of the negligence of appellant.

The reason that Mrs. Highland went to the bakery was because she thought Mrs. Damon's life was endangered by the fumes. The dangerous situation was caused by the fumes, not by Mrs Damon's return to the bakery. The proximate cause of injury to the rescuer in such cases is the negligence of the person who created the dangerous situation. Bond v. Baltimore & Ohio Railroad Co., 82 W.Va. 557, 96 S.E. 932, 5 A. L. R. 201; ...

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