Jones v. Baker

• Citation: 179 Wash. 25,35 P.2d 1103
• Decision Date: 10 September 1934
• Docket Number: 24986.
• Court: Washington Supreme Court
• Parties: JONES v. BAKER.

35 P.2d 1103

179 Wash. 25

JONES v. BAKER.

No. 24986.

Supreme Court of Washington

September 10, 1934

Department 1.

Appeal from Superior Court, Walla Walla County; Matt L. Driscoll Judge.

Action by Oscar Jones against Henry C. Baker. From a judgment of dismissal, the plaintiff appeals.

Affirmed.

TOLMAN J., dissenting.

G. S Bond and E. W. Benson, both of Walla Walla, for appellant.

Frank B. Sharpstein, of Walla Walla, for respondent.

MAIN Justice.

This action was brought to recover damages for personal injuries. The verdict of the jury was for the plaintiff in the sum of $1,500. The defendant moved for judgment notwithstanding the verdict, and this motion was sustained. From the judgment dismissing the action, the plaintiff appeals.

The facts may be summarized as follows: The respondent, Henry C. Baker, was the owner of a large apple orchard in Walla Walla county. One Ellis Taylor had been employed by him for a number of years as superintendent and foreman upon the ranch. Taylor, with his family, resided in the dwelling house thereon. Some time prior to November 14, 1931, Taylor desired to construct an addition to the chicken house and obtained permission from the respondent to do so. The lumber was to be paid for by Taylor. The respondent co-operated in the matter only to the extent of giving his permission that the addition could be constructed. He had no interest in the chickens. In doing the work, it was partly done out of hours by Taylor, and partly during working hours. One or two of the men employed upon the ranch at times assisted, and one of them hauled the lumber.

On the date mentioned, the appellant was assisting Taylor in the construction of the addition to the chicken house. As appears from the appellant's testimony, he went to the shop not far distant and got a drawing knife for the purpose of shaving off the edge of a board so that it would fit into a place in the structure. Taylor, as preparatory to the shaving off of the edge of the board, placed two empty apple boxes on their end on the ground and set the board on its edge on top of these, the board being an inch thick and approximately twelve inches wide. After this was arranged, as appellant says: 'Mr. Taylor handed me the drawing knife and told me to try my luck with that.' Taylor held the board, and the respondent used the drawing knife, shaving down the edge of the board for a period of two or three minutes. During this time, the apple boxes were shaking, and it made the operation difficult. After about one-half of the shaving had been done, appellant says: 'As I started to come back this way, I had been shaving, and as I started to come back, the board went to one side and the knife slipped into my knee.' As a result of the injury, the appellant did not work for a period of about three weeks. While he had been employed upon the farm, he lived as a member of the Taylor family, but slept in the bunkhouse. Aside from the first few days of the three weeks' period when he was not working, he assisted Mrs. Taylor in the kitchen. Taylor's version fo the manner of the happening of the accident is entirely different, but for the purposes of this case we accept the appellant's statement as to the manner in which it happened. As already indicated, it is for the injury to the knee that recovery was sought.

The first question is whether the respondent had furnished the appellant a safe place in which to work while he was using the drawing knife. In considering this question, it will be assumed, but not decided, that Taylor bore the same relation to the respondent while he was constructing the addition to the chicken house as when he was performing the other activities for which he was employed. It is a settled rule that it is the duty of the master to furnish his servant a reasonably safe place to work. But there is a corollary to this rule, which qualifies it and which is equally well settled, and that is, where the danger or defect is as much open to the knowledge of the servant as the master, then the servant cannot recover for an injury, because he, having knowledge of and appreciating the danger or defect, is either guilty of contributory negligence or has assumed the risk. Where the danger is alike open to the observation of all, the master and servant are upon an equal footing, and the master is not liable for an injury resulting from the dangers of the business. In Brandon v. Globe Inv. Co., 108 Wash. 360, 184 P. 325, 10 A. L. R. 286, it is said:

'It is too well settled to need citation of authority that it is the duty of the master to furnish his servant a reasonably safe place in which to work; but another rule, which qualifies and runs with the one announced, and which is equally well settled, is that, where the danger or defect is as much open to the view and knowledge of the servant as of the master, then the servant cannot recover for an injury, because he, having knowledge of and appreciating the danger or defect, either is guilty of contributory negligence or has assumed the risk. It is upon this principle that this case must be decided. In the case of Griffin v. Ohio & M. R. Co., 124 Ind. 326, 24 N.E. 888, it was said:

"Where the danger is alike open to the observation of all, both the master and servant are upon an equality, and the master is not liable for an injury resulting from the dangers of the business.'

'At section 346, Beach on Contributory Negligence (3d Ed.), it is stated:

"Knowledge on the part of the employer and ignorance on the part of the employee are of the essence of the action, or, in other words, the master must be at fault and know of it, and the servant must be free from fault, and ignorant of his master's fault, if the action is to lie. The authorities all state the rule with these qualifications."

The cases of Jennings v. Tacoma Ry. & Motor Co., 7 Wash 275, 34 P. 937, and ...