McFarland v. Commercial Boiler Works, Inc.

Decision Date14 August 1941
Docket Number28198.
Citation10 Wn.2d 81,116 P.2d 288
CourtWashington Supreme Court

Department 2.

Action by Edward W. McFarland against the Commercial Boiler Works Inc., and Nieder & Marcus, Inc., for damages on account of injuries suffered by plaintiff when he fell from a grating inside a ship onto steel tanks some 20 feet below. Judgment dismissing Commercial Boiler Works, Inc., but in favor of plaintiff and against defendant Nieder and Marcus, Inc., and Nieder and Marcus, Inc., appeal.

Judgment reversed with instructions to grant new trial.

MILLARD J., dissenting.

Appeal from Superior Court, King County; Howard M Findley, judge.

Preston, Thorgrimson & Turner and Meier & Meagher, all of Seattle, for appellant.

Vanderveer, Bassett & Geisness, of Seattle, for respondent.

SIMPSON Justice.

Action was instituted to recover damages from defendants on account of injuries suffered by plaintiff when he fell from a grating inside a ship onto steel tanks some twenty feet below.

The amended complaint alleged that defendant Nieder & Marcus, Inc., purchased the engine in the barge Mazama; that to expedite its removal from the ship's hold, defendant removed certain engine room gratings and a steel stairway; that at the top of the stairway there was located a steel platform or grating; that defendant negligently failed to replace certain bolts supporting and securing the platform; and that this dangerous condition was concealed and unguarded.

It was further alleged that July 1, 1936, plaintiff in performing a duty for Commercial Boiler Works, Inc., stepped upon the platform which collapsed, and caused him to fall onto the edge of a circular steel tank some twenty feet below; and that he was severely injured by the fall, suffering damages in the sum of fifty thousand dollars.

The answer of Nieder & Marcus, Inc., denied all the allegations of negligence contained in the amended complaint. The answer alleged that the time allowed by the statute of limitations for bringing the action had expired and that plaintiff was guilty of contributory negligence.

The reply put in issue the charges made by defendant.

At the close of plaintiff's case, defendant Commercial Boiler Works, Inc., was dismissed. The case was then submitted to the jury and resulted in a verdict in favor of plaintiff and against Nieder & Marcus, Inc. Defendant Nieder & Marcus, Inc., has presented this appeal.

The assignments of error are (1) in denying appellant's challenge to the sufficiency of the evidence and motion for nonsuit, (2) in the admission of testimony, (3) in the refusal to give certain instructions and in the giving of one instruction, (4) in denying appellant's motion for judgment n.o.v., (5) in denying appellant's motion for a new trial, and (6) in entering judgment against appellant.

The pertinent facts are these: In converting the barge Mazama from a self-propelled salmon cannery into a fish reduction plant, the owner sold the sixty-eight ton, triple expansion marine engine to appellant. It was the agreement that appellant would remove the engine from the boat at its own expense. Under the personal supervision of appellant's president, Benjamin Marcus, and with the assistance of three or four men, removal work commenced May 15, 1936, and was completed May 26, 1936.

For maintenance purposes, the engine was surrounded with catwalks or gratings. Attached to one of the catwalks was a steel stairway which extended upward about twenty feet on the starboard side of the engine room. The top of the stairway was connected to a platform or small grating. This platform was bolted to another catwalk which encircled a portion of the hold. To the right of the platform as approached from the stairway was a door which opened to the upper deck.

In order to move the engine from the ship, various catwalks had to be displaced. Although the testimony is in conflict, it appears that appellant removed the engine gratings, the stairway, its railing and a supporting post. At first it was decided to displace all the upper catwalks, but later appellant concluded to leave most of them, including the above-mentioned platform, located at the head of the stairway and in front of the door. There was evidence that the bolts which secured the platform to the upper catwalk were taken out. However, it was not definitely shown that appellant did so.

After the engine had been removed, the Commercial Boiler Works proceeded to install a number of circular steel tanks and to replace the gratings. July 1, 1936, respondent, an employee of the barge owner, in order to assist in replacing the stairway stepped upon the platform. Almost immediately thereafter, the platform collapsed, causing respondent to fall astride the rim of one of the installed circular tanks some twenty feet below.

The only warning of the platform's dangerous condition was a rope stretched across the doorway. There was some testimony that another rope stretched from the wall to the railing of the upper catwalk a few feet from where it joined the platform. As to its presence on the day of the accident, a conflict in the testimony exists. Although employees of other parties were working in the barge, it was shown that only those of appellant had anything to do with the removal of the engine catwalks, the stairway, its railing and the supporting post.

The above stated facts are gleaned from testimony given by witnesses called by respondent for the reason that appellant did not offer evidence on its behalf, but rested after respondent had introduced his evidence.

Appellant challenges the right of the trial court to submit the case to the jury on the ground that no negligence was shown. In regard to this challenge, respondent is not only entitled to have all evidence weighed in his favor, but also every reasonable inference that is deduced from the evidence.

We are not triers of fact. Our duty extends only to ascertaining whether substantial evidence was presented to the jury which would warrant it in deciding for respondent.

An examination of that evidence discloses that the removal of the engine was under appellant's sole supervision; that the engine grating, the steel stairway, its railing and a supporting post were taken out to facilitate the displacement of the engine; and that with the exception of two lag screws below the door sill, the platform was left with little or no support. This evidence, together with the other facts, forms a chain of circumstances which tends to establish the further fact that two certain bolts, connecting the platform to the adjacent catwalk and furnishing additional support, were removed by appellant's employees. Hence, the insecure, and thus dangerous, condition of the platform may be attributed to appellant.

That circumstantial evidence may be used to prove negligence like any other fact is clearly established by decisions of this court. Helland v. Bridenstine, 55 Wash. 470, 104 P. 626; St. Germain v. Potlatch Lumber Co., 76 Wash. 102, 135 P. 804; Sweeten v. Pacific Power & Light Co., 88 Wash. 679, 153 P. 1054; Sandanger v. Carlisle Packing Co., 112 Wash. 480, 192 P. 1005, affirmed 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927; Peterson v. Great Northern R. Co., 166 Wash. 538, 7 P.2d 963; Nelson v. West Coast Dairy Co., 5 Wash.2d 284, 104 P.2d 76, 130 A.L.R. 606.

In Sandanger v. Carlisle Packing Co., supra [112 Wash. 480, 192 P. 1006], plaintiff sought to recover for burns sustained by the explosion of a can of gasoline, supposedly containing kerosene, in starting a fire in a cook stove. Although the evidence did not definitely disclose that defendant made the mistake of putting gasoline in a can usually filled with kerosene, this court in passing on the question stated:

'The evidence does not disclose with certainty who filled the can or where it was filled, but there is some ground for inferring that it was filled by Stensland, the commander of the boat, from appellant's store of supplies on shore. It, in any event, seems to have been his duty to see that the can was filled. There is some evidence tending to show that appellant did not exercise due care in keeping its gasoline and kerosene receptacles in its store of supplies on shore properly designated, so that their respective contents would be readily distinguishable. This evidence is not very satisfactory, but is of some moment in view of what actually happened.'

In the case at bar, that no one observed just exactly what appellant did in expediting the removal of the engine is clear. However, the evidence shows that its workmen removed the supports (the steel stairway, its railing and a support post) from the platform upon which respondent stepped, and that no warning signs were ever placed or posted to notify other workmen of the fact that the platform was insecure.

Appellant next contends that, assuming negligence, it cannot be held liable for the reason that it had completed the removal work many days prior to the time of the accident, and that it owed no duty to furnish respondent a safe place in which to work. Its counsel argue: 'The breach of duty constituting negligence as far as respondent was concerned was the failure thereafter of the boat owner to furnish him a safe place in which to work, a duty which we doubt could ever be delegated to someone else, but in any event, if appellant ever owed any such duty to respondent the same ended when the power of controlling the premises and maintaining their safety ended.'

In support of this argument, appellant creates an analogy between the legal relations of an independent contractor and his employer, and the legal relations in the present case between appellant and the boat owner. From...

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