Lozan v. Fraternal Order of Eagles, Aerie No. 3

• Decision Date: 05 February 1959
• Docket Number: No. 34670,34670
• Citation: 53 Wn.2d 547,335 P.2d 4
• Parties: George LOZAN, Respondent, v. FRATERNAL ORDER OF EAGLES, AERIE NO. 3, a Washington corporation, Appellant.
• Court: Washington Supreme Court

Page 547

53 Wn.2d 547

335 P.2d 4

George LOZAN, Respondent, v. FRATERNAL ORDER OF EAGLES, AERIE NO. 3, a Washington corporation, Appellant.

No. 34670.

Supreme Court of Washington, Department 2.

Feb. 5, 1959.

Lycette, Diamond & Sylvester, Hereford T. Fitch, Seattle, for appellant.

Byrton W. Lyon, Jr., Tacoma, for respondent.

FOSTER, Justice.

The appellant, Fraternal Order of Eagles, Aerie No. 3, seeks a reversal of the judgment against it in this personal injury action. Error is claimed on one instruction and on insufficiency of the evidence.

Under such circumstances, it is familiar law that the evidence will be viewed in the aspect most favorable to the respondent, which includes all favorable inferences, and that instructions are considered as a whole and one may not be isolated.

For the purpose of raising revenue, the appellant gave a public dinner at its lodge building in Tacoma, Washington, on April 7, 1957, from which enterprise it realized a profit of six hundred dollars. Only those purchasing tickets were admitted to the premises on the occasion in question, and, in addition to the dinner, such persons were entitled to the club facilities, including the bar and the right to participate in drawings for door prizes. Lodge members were no different from the public because admission was by ticket only.

It is a fair inference from the record that a large number of persons attended. The dinner began at two p. m., and the mishap in question occurred about four p. m. Approximately a week prior to this public affair, those in charge requested one Hartman, a member of the lodge, to assist in serving the dinner. It is undisputed that he was a member of the group which did so. Early in the day he had worked in the kitchen, but at the time of the accident he was near by the respondent, and was assisting in clearing the tables and resetting them.

It is abundantly clear that the available staff was insufficient to serve all present and that an appeal was made to those present to assist, to which appeal the respondent and others yielded.

When those seated had finished their dinner, the tables were cleared and clean paper rolled upon them. For that purpose respondent was given a roll of paper and was placing it upon the tables when, almost immediately thereafter, he slipped on some greasy food that had been spilled upon the floor, from which fall he sustained the injuries of which he complains. Hartman testified that he was standing near the respondent at the time of the accident, and that he saw the greasy food on the floor in time to have warned respondent of the hazard or to have removed it, but that he did neither. The jury was entitled to find that Hartman was in charge of clearing the tables. The evidence is uncontradicted that the appellant made no arrangements for the inspection of the floor during the progress of the dinner.

The court instructed the jury with painstaking care upon the law relating to the issues. In fact, appellant assigns error to only one instruction. Because the respondent was a paying customer at the dinner, the court instructed that the appellant owed him a duty of ordinary case, which instruction is not challenged. The appellant argues that, because respondent yielded to the call for assistance by those in charge of the dinner, he lost his status as a paying customer and became a fellow servant of Hartman, and that he cannot recover because of the negligence of a fellow servant.

The court likewise instructed that the appellant owed the respondent, if he were an employee, a nondelegable duty to furnish him a safe place to work.

The court instructed with respect to the fellow-servant rule to which no exception was taken, and, of course, there is no assignment respecting it. Consequently, it becomes the law of the case. Likewise, the court instructed that, if the jury found the plaintiff was a fellow servant of Hartman's, the fellow-servant doctrine precluded the plaintiff's recovery. That, likewise, is the law of the case for the same reasons.

There was evidence from which the jury could have found that the respondent was a fellow servant of Hartman's, but that evidence was denied by the respondent which made it a question of fact for the jury. The verdict is conclusive on the dispute of fact.

The one instruction assigned as error is as follows:

'You are instructed as a matter of law that facts known to an agent when acting as such are in law known to the principal. The ordinary rule is that the knowledge of a servant concerning matters the control or supervision of which has been delegated to him by the master is the knowledge of the master.'

Instructions must be taken as a whole. Barnes v. Labor Hall Ass'n, 51 Wash.2d 421, 319 P.2d 554; Myers v. West Coast Fast Freight, Inc., 42 Wash.2d 524, 256 P.2d 840.

The argument against the instruction is that there was no evidence from which the jury could find that Hartman was an agent.

The evidence is undisputed that about a week prior to the dinner those in charge arranged with Hartman to assist in serving the dinner. It is undisputed that he accepted. At most, this dispute was but a question of fact for the jury to resolve, but it cannot be said there was no evidence to support the proposition that Hartman was an agent of the appellant for the purpose of this public dinner.

In any event, the error assigned to the challenged instruction entirely overlooks instruction No. 14, which is as follows:

'You are instructed that if the witness Hartman is not an employee of the defendant, defendant is not responsible for Hartman's failure to warn plaintiff.'

There was evidence from which the jury could reasonably find that Hartman was an agent and employee of the appellant.

Appellant asks us to hold as a matter of law that respondent was guilty of contributory negligence in not observing the greasy food on the floor. The court properly instructed the jury that respondent was required to exercise ordinary care for his own safety. Likewise, because respondent was a paying customer, the court instructed that appellant owed respondent the duty of ordinary care. Under such circumstances, the duty owed by appellant to respondent is no different from that of the duty of the owner of a restaurant to its customers.

Moreover, the argument overlooks instruction No. 16 to which no exception was taken and, consequently, it is the law of the case. The instruction is as follows:

'You are instructed that in considering and determining whether or not the plaintiff was guilty of contributory negligence that it is not contributory negligence to fail to look for danger unless there is some reason to apprehend danger.

'While one must use his faculties and senses to discover and avoid danger, yet, where there is no reason to anticipate danger or a hazard, reasonable care does not require one who was working or walking in a place provided for that purpose to keep his eyes riveted to the floor immediately in front of his feet.

'So in this case, if you find from the evidence that the plaintiff did not see any substance or object or material on the floor before coming in contact with it, and if you further find from the evidence that in the exercise of reasonable care on his part under all the surrounding facts and circumstances the plaintiff would not have discovered the presence of such substance, material or object before coming in contact with it, then the plaintiff would not be guilty of contributory negligence.'

This conforms with our decision in Wiard v. Market Operating Corp., 178 Wash. 265, 34 P.2d 875, 877, in which we said:

'That the question of contributory negligence was for the jury is not seriously questioned. The grease spot was not so large as to attract the attention of appellant prior to her fall, notwithstanding she had been sitting within a few feet of it for some minutes. One cannot be charged with contributory negligence as a matter of law unless the defective condition of the floor is so obvious as to challenge attention to the danger it threatens. Robb v. Niles-Bement-Pond Co., 269 Pa. 298, 112 A. 459; Watson v. Zimmerman, 175 Wash. 410, 27 P.2d 707.'

In Hayden v. Colville Valley Nat. Bank, 180 Wash. 220, 39 P.2d 376, we reversed a judgment notwithstanding the verdict because momentary forgetfulness of a danger is not contributory negligence as a matter of law.

Whether respondent was contributorially negligent was, therefore, a question of fact which the court rightfully submitted to the jury under appropriate instructions which are unchallenged.

Appellant contends that respondent assumed the risk of injury from food on the floor.

The accident happened almost immediately after respondent began assisting in clearing the tables. The argument overlooks the fact that the respondent testified unequivocally that he did not see the food on the floor before he fell. The very essence of the doctrine of assumption of risk is that a servant not only has knowledge of danger, but also an appreciation thereof. Prosser states the applicable law in the following paragraph:

"Knowledge of the risk is the watchword of assumption of risk.' Ordinarily the plaintiff will not be taken to assume any risk of conditions or activities of which he is ignorant. Furthermore, he must not only know of the facts which create the danger, but he must comprehend and appreciate the danger itself. 'A defect and the danger arising from it are not necessarily to be identified, and a person may know...