Lamborn v. Phillips Pac. Chemical Co.

• Citation: 89 Wn.2d 701,575 P.2d 215
• Decision Date: 16 February 1978
• Docket Number: No. 44899,44899
• Parties: James F. LAMBORN, Appellant, v. PHILLIPS PACIFIC CHEMICAL CO., a Washington Corporation, Respondent.
• Court: Washington Supreme Court

Page 701

89 Wn.2d 701

575 P.2d 215

James F. LAMBORN, Appellant, v. PHILLIPS PACIFIC CHEMICAL CO., a Washington Corporation, Respondent.

No. 44899.

Supreme Court of Washington, En Banc.

Feb. 16, 1978.

Sullivan & McKinlay, Edward H. McKinlay, Pasco, for appellant.

Olson & Olson, Roger L. Olson, Pasco, for respondent.

STAFFORD, Associate Justice.

Appellant Lamborn, an employee of Widing Transportation Company (Widing), appeals from a judgment entered following a jury verdict in his third-party employer action against respondent, Phillips Pacific Chemical Co. We affirm.

Widing, an independent contractor, hauls ammonia products for respondent. Appellant, a Widing employee, brought this action after he fell from Widing's tank truck while loading clear aqua ammonia at respondent's ammonia manufacturing plant. Appellant claimed respondent was negligent in failing to provide both a reasonably safe place to work and reasonably safe equipment. Appellant's theory was based primarily upon the differing loading facilities and safety equipment provided at respondent's two liquid ammonia loading sites.

Respondent manufactures two liquid ammonia products: clear aqua ammonia and fertilizer aqua ammonia. The primary differences between them are color, ultimate usage, and the greater sales volume of fertilizer aqua ammonia. Each product is loaded at a different site at respondent's plant.

The mechanics of loading both products are generally similar. A tank truck is driven beneath the loading equipment; the driver opens the loading dome on top of the truck tank; a loading spout is inserted into the dome; the tank is filled; the spout is removed; and the dome is closed. Thereafter the driver transports the liquid ammonia to respondent's customers. However, the loading facilities and attendant safety equipment at respondent's two loading sites differ significantly.

At the fertilizer ammonia site, respondent provides an overhead loading rack with an attached catwalk. The catwalk, when in place, extends to the top of the tank truck thereby providing easy and safe access for the driver to the top of the truck. After the truck is in the loading area, the driver arranges the rack and catwalk over the truck by an automatic control. The driver is thus able to walk onto the truck tank, via the catwalk, and manually open the loading dome. Thereafter, the driver may dismount and, by automatic control, position a metal loading spout over the dome of the truck tank. Exhaust fans and a hood, which fits over the dome, carry away ammonia fumes. With the spout, fan and hood in place, the driver dials an automatic volume control and activates a pump switch to begin the ammonia flow. When the tank is filled, an automatic shut-off valve stops the ammonia flow. The spout is then automatically disconnected and the driver remounts the truck to close the dome. Usually no employee of respondent assists in this loading process.

The loading process is less automated at the clear ammonia site. Neither a loading rack nor catwalk is provided. Rather, the driver must climb onto the truck tank to open the loading dome. Respondent's attendant then must pass him the loading spout, a two to three inch rubber hose which is inserted into the dome and fastened securely with a rope. Exhaust fans and hoods are not provided. The driver inserts a dipstick into the dome, orally instructs the attendant to activate the ammonia pump, and leaves the truck. The driver estimates when the tank is full by one of three methods: (1) passage of time; (2) noting the position of the dipstick; or (3) noting the volume on respondent's unreliable pump gauge. Upon estimating a full load, the driver must remount the truck and straighten the dipstick to more accurately measure the load. Often, several dipstick measurements are required. At full load, the spout is removed and the dome is manually closed.

Gas masks were readily available at the fertilizer loading site and were located within 25 or 30 yards of the clear ammonia loading site. Neither site had a sign requiring that masks be worn or alerting drivers of their location. At the fertilizer site, an enclosed house was provided for drivers to escape ammonia fumes not exhausted by the hood. No such house was located at the clear ammonia site.

Appellant's injury occurred while he was loading clear ammonia. He estimated his tank was nearly full and remounted the truck intending to measure the load with the dipstick. As appellant approached the loading hole a sudden shift in wind caused ammonia fumes to blow into his face. He was not wearing a gas mask and, thus, was momentarily blinded or dazed. He either fell or ran off the top of the truck and permanently injured his heel.

Appellant sued respondent, as a third-party employer, alleging respondent had failed to provide him with a reasonably safe place to work and had failed to provide him with reasonably safe equipment. Respondent denied negligence and alleged contributory negligence on appellant's part. At trial respondent maintained that the sole proximate cause of appellant's injury was either appellant's own negligence, the negligence of appellant's employer, Widing, or a concurrence of the two.

During trial, appellant unsuccessfully sought to exclude evidence of Widing's negligence. Appellant argued that his employer's negligence was irrelevant since, at best, it made respondent a concurrent tortfeasor. Alternatively, appellant orally requested a cautionary instruction limiting the jury's consideration of such evidence. However, an actual cautionary instruction was neither proposed by appellant nor given by the court.

The jury set appellant's damages at $350,000 but found him 99 percent negligent. Thus, the trial court reduced the damage award to $3,500, or 1 percent of $350,000. Appellant's motion for a new trial was denied and he appeals. The Court of Appeals certified the matter to this court.

First, appellant contends the trial court erred by refusing to exclude evidence of employer Widing's negligence. It is said to be irrelevant. We disagree.

The relevancy of evidence is a matter within the discretion of the trial court. Roberts v. Arco, 88 Wash.2d 887, 893, 568 P.2d 764 (1977); Ladley v. Saint Paul Fire & Marine Ins. Co., 73 Wash.2d 928, 934, 442 P.2d 983 (1968); Jacobs v. Brock, 73 Wash.2d 234, 238, 437 P.2d 920 (1968). Also, facts tending to establish a party's theory, or to qualify or disprove the testimony of an adversary, are relevant. Fenimore v. Donald M. Drake Constr. Co., 87 Wash.2d 85, 89, 549 P.2d 483 (1976); Ladley v. Saint Paul Fire & Marine Ins. Co., supra, 73 Wash.2d at 934, 442 P.2d 983; Bloomquist v. Buffelen Mfg. Co., 47 Wash. 828, 829, 289 P.2d 1041 (1955).

Considering the foregoing, we note it was respondent's theory that the sole proximate cause of appellant's injury was (1) employer Widing's negligence in failing to properly instruct appellant on safety precautions or to furnish him with safe equipment; (2) appellant's own negligence in failing to seek training or to wear a gas mask; or, (3) a concurrence of the two. Consequently, evidence of Widing's negligence would tend to establish either that Widing alone, or in conjunction with appellant, proximately caused the injury. As such, the evidence was both relevant and properly admitted by the trial court. See, Fenimore v. Donald M. Drake Constr. Co., supra, 87 Wash.2d at 89, 549 P.2d 483; Ladley v. Saint Paul Fire & Marine Ins. Co.,supra, 73 Wash.2d at 934, 442 P.2d 983; Bloomquist v. Buffelen Mfg. Co.,supra, 47 Wash.2d at 829, 289 P.2d 1041.

Appellant asserts, however, that if in addition to Widing's negligence respondent's negligence might also have been shown to be a proximate cause of appellant's injury, then evidence of Widing's negligence would merely establish that Widing and respondent were concurrent tortfeasors. Thus, it is urged, respondent would still be liable and the challenged evidence would be irrelevant. We disagree.

The possibility that the jury might find Widing and respondent to have been concurrent tortfeasors does not destroy either the relevance or admissibility of the evidence of Widing's negligence. Relevant evidence of a third party's negligence is admissible even though proof thereof may not relieve the defendant of liability. Fenimore v. Donald M. Drake Constr. Co., supra, 87 Wash.2d at 89, 549 P.2d 483.

Next, appellant claims the trial court erred by failing to give a cautionary instruction limiting the jury's consideration of the challenged evidence. Appellant was concerned the jury might impute to him the negligence of his employer. We will not consider the alleged error. Appellant proposed neither a cautionary instruction nor an instruction segregating Widing's negligence from his own. If evidence is admissible for a specific purpose, error cannot be assigned either to its admission or effect if no instruction limiting its purpose has been requested and actually proposed. State v. Smith, 74 Wash.2d 744, 772, 446 P.2d 571 (1968); McGarvey v. Seattle, 62 Wash.2d 524, 533, 384 P.2d 127 (1963); Lundberg v. Baumgartner, 5 Wash.2d 619, 622, 106 P.2d 566 (1940).

Appellant also assigns error to the giving of instruction No. 24 which reads:

The owner of premises owes to the servant of the independent contractor employed to perform work on his premises a duty to avoid endangering him by the owner's negligence or affirmative act, but owes no duty to protect him from the negligence of his own master.

Appellant maintains the instruction is an incorrect statement of the law, citing Lyons v. Redding Constr. Co., 83 Wash.2d 86, 515 P.2d 821 (...