Jay v. Walla Walla College

• Decision Date: 13 February 1959
• Docket Number: No. 34683,34683
• Citation: 53 Wn.2d 590,335 P.2d 458
• Court: Washington Supreme Court
• Parties: James C. JAY and Janice Jay, husband and wife, Respondents, v. WALLA WALLA COLLEGE, Appellant.

Page 590

53 Wn.2d 590

335 P.2d 458

James C. JAY and Janice Jay, husband and wife, Respondents, v. WALLA WALLA COLLEGE, Appellant.

No. 34683.

Supreme Court of Washington, Department 1.

Feb. 13, 1959.

Allen & Johnson, Walla Walla, for appellant.

Minnick & Hahner, Walla Walla, for respondents.

OTT, Judge.

February 10, 1957, while James Jay, a third-year chemistry student at Walla Walla College, was conducting an authorized experiment in the analytical laboratory in the basement of the college chemistry building, he heard the sound of a small explosion in the organic laboratory across the hall. He entered that laboratory and saw two students attempting to quench the flames of a fire with a fire extinguisher. Jay picked up an extinguisher lying on the floor in the hallway, re-entered the room, and attempted to use the extinguisher on the fire, but the extinguisher was empty. While Jay was attempting to use the empty extinguisher, a violent explosion from the materials used in the experiment occurred directly in front of him. The explosion was heard several blocks away, and was of such force that most of the windows in the brick veneer building were broken. The three persons in the room were injured by flying fragments of glass. The retina of Jay's left eye was punctured and required surgery.

Jay brought this action against the college for damages suffered as a result of the explosion. In his complaint, he alleged that the college was negligent (1) in failing to provide adequate supervision of the laboratory, and (2) in failing to provide and maintain properly serviced fire extinguishers. The defendant's answer denied liability and affirmatively pleaded, as a defense, contributory negligence and the doctrine of volenti non fit injuria.

The cause was tried to a jury, which returned a verdict for the plaintiff. The defendant college appeals.

The appellant challenges the sufficiency of the evidence to support a finding of its negligence.

The experiment involved the use of ethylene ether and other highly flammable gases. After two fires had occurred previously during the same experiment, Dr. Bowers, the instructor in charge of the class, was called from his office on the second floor. He examined the equipment and materials used in the experiment and told the student performing it to apply less heat to the experiment. Dr. Bowers then returned to his office. The third fire and the explosion which caused the injuries occurred shortly thereafter.

The evidence was conflicting as to what constituted adequate supervision of such an experiment, some witnesses contending that the supervision afforded in the instant case was sufficient and others contending that it was insufficient. The enumerated facts posed a jury question as to both the standard of care required and whether that standard had been met. See Holmes v. Toothaker, Wash., 1958, 328 P.2d 146; Brigham Young University v. Lillywhite, 10 Cir., 1941, 118 F.2d 836.

The evidence with reference to the adequacy of the fire-fighting equipment was that the organic laboratory had one five-pound carbon dioxide fire extinguisher. There were five extinguishers in the basement, none of which had been recently maintained or inspected. The extinguisher from the organic laboratory had been emptied, in extinguishing the two previous fires, and left in the hallway. The extinguisher being used by the students when Jay entered the laboratory had been obtained by them from another room in the basement. Chemical fires were a frequent occurrence. These facts established a prima facie case of negligence in failing to provide adequate fire-fighting equipment. 22 Am.Jr. 604, § 14.

There was sufficient evidence in the record upon which the jury could have found liability on either ground of negligence. We find no merit in appellant's first assignment of error.

Appellant assigns as error the court's refusal to hold, as a matter of law, that respondent had assumed the risk or was guilty of contributory negligence.

The doctrines of contributory negligence and assumption of risk are closely related. Contributory negligence sounds in tort and implies the failure of the plaintiff to exercise due care, while assumption of risk rests in contract and negatives liability without reference to the fact that plaintiff may have acted with due care. Walsh v. West Coast Coal Mines, 1948, 31 Wash.2d 396, 197 P.2d 233; 38 Am.Jur. 847, § 172.

We have held that the doctrine of assumption of risk applies in those cases where there is a master-and-servant or some similar relationship. Nelson v. Booth Fisheries, 1931, 165 Wash. 521, 6 P.2d 388. Respondent's relationship with appellant, as a student, is more nearly that of a business visitor or invitee. See Grove v. D'Allessandro, 1951, 39 Wash.2d 421, 235 P.2d 826; Kalinowski v. Young Women's Christian Ass'n, 1943, 17 Wash.2d 380, 135 P.2d 852. The record contains no evidence of a contractual relationship to sustain the defense of assumption of risk.

We will, therefore, consider appellant's assignment of error as directed to the court's refusal to apply the doctrine of volenti non fit injuria, or to find respondent guilty of contributory negligence as a matter of law.

Appellant urges that the doctrine of volenti non fit injuria applies to bar recovery, because the respondent knew that the gases involved in the experiment were explosive and understood all of the circumstances surrounding the fire and the hazard of it before approaching it, and that, in so approaching, he assumed responsibility for the result of his act. In other words, appellant contends that respondent both knew of and appreciated the danger. The general rule is that when a person voluntarily assents to a known danger, he must abide the consequences, even if another party is negligent. Ewer v. Johnson, 1945, 44 Wash.2d 746, 270 P.2d 813. But a party is excused from the force of the rule if an emergency is found to exist or if the life or property of another is in peril. Hammonds v. Haven, Mo.1955, 280 S.W.2d 814, 53 A.L.R.2d 992; Reynolds v. Great Northern Ry. Co., 1924, 159 Minn. 370, 199 N.W. 108; 38 Am.Jur. 912, § 228.

The trial judge did not err in submitting the factual question of the existence of an emergency to the jury. Ewer v. Johnson, supra, and cases cited.

Respondent's conduct in the instant case did not constitute contributory negligence which would bar recovery unless his acts in approaching the fire, staying in proximity to it, and attempting to assist in extinguishing it constituted such negligence and were a proximate cause of his injury. There were approximately seventy persons in the building. No provision for fighting fires emanating from chemical experiments had been made other than for the students themselves to use the equipment provided. Respondent was required to act as a reasonably prudent man would act under the circumstances that existed. French v. Chase, 1956, 48 Wash.2d 825, 297 P.2d 235. Whether respondent's conduct met the reasonably prudent man test was a factual matter for the jury's determination. It was not error for the court to refuse to find, as a matter of law, that responde...