Hoffman v. Gamache, 70--40745

• Decision Date: 10 February 1970
• Docket Number: No. 70--40745,70--40745
• Citation: 1 Wn.App. 883,465 P.2d 203
• Court: Washington Court of Appeals
• Parties: Adolph HOFFMAN and Grace Hoffman, husband and wife, Respondents, v. Euclid W. GAMACHE and Leone V. Gamache, husband and wife, Appellants.

Page 883

1 Wn.App. 883

465 P.2d 203

Adolph HOFFMAN and Grace Hoffman, husband and wife, Respondents, v. Euclid W. GAMACHE and Leone V. Gamache, husband and wife, Appellants.

No. 70--40745.

Court of Appeals of Washington, Division 3.

Feb. 10, 1970.

Kenneth C. Hawkins, Yakima, for appellants.

Arthur Kirschenmann, Yakima, for respondents.

EVANS, Chief Judge.

Defendants appeal from a judgment awarding plaintiff damages for personal injuries sustained when his hand became engaged in chopper blades in defendants' hop-picking machine.

The machine in question is stationary and housed under a metal roof. It consists of various choppers, recleaners, and conveyor belts having an overall operating length of 175 feet, located on three separate floors. When hop vines are cut in the field they are laid on racks in trucks and hauled to the hop-picking machine, where the vines are lifted vertically off the trucks and hooked onto grasper bars and carried through a picking drum to separate the hops from the vine. The hops so separated fall onto a diamond mesh that separates the single hops from clusters. The vines are then fed into choppers and exited through a series of conveyor belts. The single hops which fall through the diamond mesh are taken by conveyor to a recleaner and then to a kiln. The clusters of hops go through additional choppers until they are separated, recleaned and then fed into the kiln.

The plaintiff, Adolph Hoffman, is a general mechanic of many years' experience, and was self-employed in the auto repair business. For six years prior to the accident Hoffman had taken time off from his repair business to work during the hop harvest as operator of defendants' hop-picking machine, with the help of two assistants.

Plaintiff's employer was the defendant, Euclid W. Gamache, but his immediate boss, and the man who hired him, was Mel Idler, the manager of defendants' hop-picking operations. As manager of the hop ranch, it was Idler's duty to see that the hops were grown, harvested, picked, dried, and marketed. He had the overall supervision of the entire operation, and hired all of the men working on the hop-picking machine. As to Idler's responsibilities in the operation of the machine, he testified that he would discuss the operation of the machine with the mechanics and if there were any problems 'they would thresh it out from there.' He made occasional inspections of the hop-picking machine to see how it was working, and some of his time was devoted to the supervision of the operation of the machine because, as he testified, this was the most important part of the hop harvesting process. At the conclusion of the harvesting season it was his practice to go over the machine for the purpose of making improvements in its operation for the following year.

In the years prior to the 1965 hop-picking season, Mel Idler noticed that hop vines being carried on one of the conveyor belts in one particular area were piling up and causing the conveyor belt to become clogged. He determined this situation could be corrected by widening the conveyor belt from 36 to 48 inches. In the spring of 1965 he personally supervised the work involved in widening this particular conveyor belt, which passed directly beneath the chopper in which the plaintiff Hoffman later received his injuries. In widening the belt, it was necessary to lengthen the frame upon which the choppers rested. While in dispute, there is substantial evidence from which the jury could find that in the process of widening the belt and lengthening the chopper frame, a protective cover enclosing the chopper was removed and not replaced. Plaintiff Hoffman did not participate in this remodeling work and was not informed the protective cover had been removed.

On the morning of August 27, 1965, plaintiff Hoffman was making his rounds inspecting the various operations of the hop-picking machine, and came to the area where the conveyor had been widened. He stood facing the conveyor belt, which was about waist-high, and was observing an area to his right, where hop vines were coming onto the conveyor belt. He testified that as he was looking to his right he raised his left hand to about eye-level, where it became engaged in the unprotected chopper. Two fingers on his left hand were severed. He testified that this chopper had been completely enclosed in prior years and he was not aware that it had been uncovered. When asked the reason for raising his left hand, the plaintiff could not explain. However, there is evidence from which the jury could conclude that this was an unconscious act on his part while his attention was centered on the conveyor belt operation to his right.

Defendants' first five assignments of error are directed to the trial court's refusal to find plaintiff guilty of contributory negligence as a matter of law. Inherent in defendants' arguments, both regarding the law governing this case and his proposed instructions, is the contention that the defense of assumption of risk as a bar to recovery for the employer's negligence still exists in a case of this nature. In Siragusa v. Swedish Hosp., 60 Wash.2d 310, 373 P.2d 767 (1962), our Supreme Court, at 319, 373 P.2d at 733, stated:

The time has now come, therefore, to state unqualifiedly that an employer has a duty to his employees to exercise reasonable care to furnish them with a reasonably safe place to work. We now hold that if an employer negligently fails in this duty, he may not assert, as a defense to an action based upon such a breach of duty, that the injured employee is barred from recovery merely because he was aware or should have known of the dangerous condition negligently created or maintained. However, if the employee's voluntary exposure to the risk is unreasonable under the circumstances, he will be barred from recovery because of his contributory negligence. Knowledge and appreciation of the risk of injury, on the part of the employee, are properly important factors which should be given weight in the determination of the issues of whether the employer is Negligent in maintaining the dangerous condition and whether the employee is Contributorily negligent in exposing himself to it.

Siragusa, supra, at 320, 373 P.2d at 774, adopts the Missouri rule as stated in Hines v. Continental Baking Co., 334 S.W.2d 140 (Mo.1960), that

'* * * A servant never assumes risks arising from negligence for which the master is liable, but only those which remain after the master has exercised ordinary care.

'* * * The servant assumes only such risks as are inherent in his work after the master has exercised such care in providing a safe place to work, and within these confines the ultimate fact question is for the jury but under instructions which preserve such limitations. * * *'

Defendants, however, contend that Siragusa does not apply to his factual situation because plaintiff Hoffman had authority to correct any defects which would create a condition of hazard. Defendants misinterpret the facts. A review of the entire record reveals that plaintiff's primary duty was to service, maintain and keep the hop-picking machine in operation. Both he and defendants' general manager, Mel Idler, testified it was essential the hop-picking machine remain fully operative throughout the hop harvest. If the machine were to break down or be stopped for repairs the entire harvest crew would remain idle until the machine was again put in operation. There is nothing in the record to indicate the plaintiff was authorized to modify or improve the machine. Modifications or improvements were customarily made during the off-season under supervision of defendants' general manager, Mel Idler. It was Mr. Idler who supervised the modification in 1965 which involved the removal of the protective cover over the chopper in question. Mr. Hoffman did testify he had authority to correct any unsafe condition which he found in the operation of the machine but there is nothing in the evidence from which the jury could find this authority was any more than incidental to his main duties as an operator. It requires a distortion of the evidence to seriously contend that because plaintiff testified he had authority to correct unsafe conditions he was, therefore, hired 'for the express purpose of making the machine safe.' In any event, we do not interpret Siragusa and those cases following it to engraft an exception to its rule merely because the employee himself had skills equal or superior to those possessed by his employer, or because he had incidental authority to correct defects. Once negligence on the part of the employer is established,

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