Nelson v. Booth Fisheries Co.

• Decision Date: 11 December 1931
• Docket Number: 23081.
• Parties: NELSON v. BOOTH FISHERIES CO.
• Court: Washington Supreme Court

6 P.2d 388

165 Wash. 521

NELSON v. BOOTH FISHERIES CO.

No. 23081.

Supreme Court of Washington, En Banc

December 11, 1931

Appeal from Superior Court, King County; Robert M. Jones, Judge.

Action by Andrew Nelson against the Booth Fisheries Company. From judgment for defendant, plaintiff appeals.

Reversed and remanded, with directions.

Geo Olson and George F. Hannan, both of Seattle, for appellant.

Hayden Merritt, Summers & Bucey, of Seattle, for respondent.

BEELER J.

The plaintiff brought this action to recover damages for personal injuries sustained by him in falling from a dock owned and operated by the defendant at Kasaan, Alaska. The cause was tried to the court and a jury resulting in a verdict in favor of the plaintiff. Thereafter the defendant interposed a motion for a new trial, and a motion for judgment non obstante veredicto. No ruling was made on the motion for a new trial, but the trial court granted the motion for judgment n. o. v., and entered judgment dismissing the plaintiff's action, from which he has appealed.

The principal questions presented by this appeal are: First, was the respondent guilty of actionable negligence; and, second, if so, is the appellant debarred from recovery by reason of contributory negligence? A determination of these questions necessitates a review of the facts.

The respondent owns and operates a fish cannery near Kasaan, Alaska, and owns and uses in connection therewith a warehouse, a fishhouse, a blacksmith shop, a carpenter shop, a messhouse, a bunkhouse and various cottages. These several buildings are scattered along the shore covering an area of approximately 25 acres. The cannery extends north and south, along the shore, is from 350 to 400 feet in length, and varies in width from 80 to 125 feet. There are five doors leading from the inshore or east side of the cannery onto a sidewalk. The warehouse, built on piers, connects with the north end of the cannery, and extends westward out over the water a distance of approximately 200 feet. A walkway some ten or twelve feet in width, built on piers, connects with the south end of the cannery and extends westward over the water for a distance of about 125 feet to the fishhouse. The respondent owned and used in its fishing industry a small boat or tender called the 'Little Glory,' on which the appellant was employed as a marine engineer. The jury were warranted in finding that at about 10:00 o'clock p. m. on July 15, 1929, the 'Little Glory' was docked at the respondent's fishhouse and soon thereafter the appellant, on a personal errand, left the boat to visit the town of Kasaan, which is situated about a mile distant from the cannery. In order to reach the shore the appellant walked along the walkway extending from the fishhouse to the cannery, thence through the cannery, which was then open and lighted, thence onto the sidewalk paralleling the east side of the cannery, thence to the nearby village. On his return from Kasaan at about midnight the lights in the cannery were out and the five cannery doors on the east or inshore side were closed. It appears that the appellant tried to enter the cannery through the door farthest to the north, on the east side of the cannery, but apparently concluded that it was impossible to open the door, although the evidence disclosed that the door was in fact unlocked. The appellant did not attempt to enter the cannery through any one of the other four doors on the east side of the cannery, but proceeded to the north-east corner of the cannery and then walked westward on the dock to the end of the warehouse, thence south across the dock the width of the warehouse, a distance of about 96 feet, thence eastward along the warehouse a distance of approximately 125 feet, thence south along the west side of the cannery for a distance of about 75 feet, thence east along the south side of the cannery a distance of approximately 60 feet. Up to this point the dock is from 10 to 12 feet or more in width, but here a shed projects out onto a portion of the dock and the dock space narrows down to about 5 or 7 feet. This shed had an overhanging roof without eaves troughs from which water dripped onto the dock below when it rained.

While passing along this narrowed dock or way, the appellant slipped off of it and fell onto the rocks below, a distance of about fourteen feet, and sustained the injuries complained of.

The recitals in the judgment disclose the following reasons why judgment was entered in favor of the respondent notwithstanding the verdict of the jury: '(a) That plaintiff's injuries resulted from and were caused by his own contributory negligence. (b) That the plaintiff's injuries resulted from conditions and dangers the risk of which was assumed by the plaintiff. (c) That despite the plaintiff's knowledge of the conditions and dangers resulting in his injuries he voluntarily subjected himself thereto.'

The doctrine of assumed risk has no application to the facts in this case. This doctrine is limited in its application to those cases where the relation of master and servant or some similar relation exists. In this case, the appellant, while using the respondent's dock in going from and returning to the boat, was an invitee. The obligation of a dock owner to an invitee has been settled in this state in a number of decisions. The gist of these decisions is that the owner or operator of a dock or wharf is under a positive duty to maintain it in a reasonably safe condition for use. Gregg v. King County, 80 Wash. 196, 141 P. 340, Ann. Cas. 1916C, 135; Alaska Pacific Steamship Co. v. Sperry Flour Co., 107 Wash. 545, 182 P. 634, 185 P. 583.

The specific charges of negligence were that the respondent carelessly permitted the accumulation of slime, moss, seaweeds, fish oil, fish scales, and other slippery substances at this place on the dock or walk, and carelessly and negligently failed to have a guard log or rail along the edge of the dock or walk at this point.

There was competent evidence introduced which tended to establish, and the jury must have found, that the respondent had failed to keep its dock in a reasonably safe condition for use, and that the appellant's injuries were proximately due to that neglect. At the place where the appellant fell from the dock there was no guard log or rail. This is not denied. As to the accumulation of slippery substances on the board walk or dock alongside the shed, there is a sharp conflict in the evidence. The verdict of the jury on this point is conclusive. A recent decision of the United States Circuit Court of Appeals for the Second District, Bailey v. Texas Co., 47 F.(2d) 153, 155, contains many features similar to the present case, and the court held that both the question of the negligence of the dock owner and the contributory negligence of the plaintiff were for the jury. It was there said:

'Coming to the merits, we think that the plaintiff was more than a licensee; he was an 'invited person.' The ship came alongside the wharf on the defendant's business; she was to lade or discharge the defendant's oil. The crew were as much 'invited,' as the ship herself, and they would not remain on board all the time she lay there. On the contrary, their business or leisure might take them ashore, and they had no way of reaching the street, except over the wharf. Harvey v. Old Dominion S. S. Co., 299 F. 549 (C. C. A. 2); Quinn v. Staten Island R. Transit Co., 224 N.Y. 493, 121 N.E. 340. * * * Had there been a single path, well indicated, by which they could come and go, probably the defendant's duty would have been limited to making that safe ( Pallocco v. Lehigh Valley R. Co., 236 N.Y. 110, 140 N.E. 212), but this was not so. While the defendant was not bound to anticipate that seamen would wander at random about the wharf, it was charged with anticipating that they would choose the most convenient route.

'They must go down the ladder, and when they found themselves on the ground a straight way led to the gate. Normally, that was what they would take, and the measure of the defendant's care was to make it reasonably safe for active, alert men. However, on the night in question the flat car was left directly in front of the ladder in such a position that on the defendant's own measurements the distance was about two feet from its foot to the edge of the car

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