Pink v. Rayonier, Inc.

• Citation: 42 Wn.2d 768,259 P.2d 629
• Decision Date: 25 June 1953
• Docket Number: No. 31739,31739
• Court: Washington Supreme Court
• Parties: PINK, v. RAYONIER, Inc.

Page 768

42 Wn.2d 768

259 P.2d 629

PINK, v. RAYONIER, Inc.

No. 31739.

Supreme Court of Washington, en Banc.

June 25, 1953.

Lester Stritmatter, Hoquiam, Donn F. Lawwill, Aberdeen, for appellant.

Lester T. Parker, Aberdeen, for respondent.

Gordon H. Sweany, Carl P. Zapp, A. C. Van Soelen, Corporation Counsel, Arthur Schramm, Skeel, McKelvy, Henke, Evenson & Uhlmann, Clarke, Clarke & Albertson, Jack Hullin, Lycette, Diamond & Sylvester, and Martin & Shorts, Seattle, amici curiae (on rehearing en banc).

FINLEY, Justice.

Heretofore, this matter on appeal was argued before Department Two of this court. An opinion disposing of it was filed by the department on March 20, 1952; 40 Wash.2d 188, 242 P.2d 174. Thereafter, we granted a petition for a rehearing before the entire court, and the case is again before us for disposition.

In the trial court, at the conclusion of plaintiff's case, the defendant made a motion for dismissal or, in the alternative, for a directed verdict. Defendant's counsel advanced three grounds in support of the motion: First, that plaintiff's personal injury lawsuit was barred by provisions of the state Workmen's Compensation Act; second, that plaintiff's evidence failed to show negligence on the part of defendant; and third, that plaintiff's evidence showed, as a matter of law, (a) contributory negligence and (b) assumption of the risk of injury on the part of plaintiff.

The trial court granted the defendant's motion, took the case away from the jury, and ordered dismissal. In the absence of any indication to the contrary, we assume the trial court considered all the grounds for dismissal urged by the defendant.

After the case was heard originally, an opinion was filed in the matter, as pointed out above. We upheld the trial court's dismissal of the plaintiff's lawsuit. This was on the specific ground that provisions of the Workmen's Compensation Act barred the plaintiff's common-law cause of action for personal injury. In reaching this decision, Department Two followed a unanimous decision, rendered shortly theretofore by the same department, in the case of Latimer v. Western Machinery Exchange, 40 Wash.2d 155, 241 P.2d 923, wherein it was held that a self-employed individual, engaged in extrahazardous work, having the right or option to become eligible to obtain benefits under the Workmen's Compensation Act by paying or causing insurance premiums to be paid in his behalf, was barred by provisions of the act from litigating in the courts of this state for a personal injury, irrespective of whether insurance premiums had been paid and irrespective of whether the injured individual actually had qualified and was entitled to industrial insurance benefits; in other words, the mere availability of an option or right to qualify for benefits under the act was a bar to any common-law cause of action for personal injury. A petition for rehearing was granted in connection with the Latimer case, supra. As a result, the court, sitting en banc, reversed the unanimous departmental decision originally reached in the Latimer case, and held that a self-employed individual is not barred from personal injury litigation by provisions of the Industrial Insurance Act, unless there has been an election to take the benefits of the act by giving written notice and paying industrial insurance premiums to the department of labor and industries; Latimer v. Western Machinery Exchange, Wash., 259 P.2d 623. The question involved here is adequately covered by the en banc opinion filed in the Latimer case, and no further discussion of it, as one aspect of the instant appeal, is necessary. It is sufficient to state that, in view of our en banc decision in the Latimer case, the trial court erred in construing provisions of the Workmen's Compensation Act as a statutory bar to appellant's cause of action; that is, in considering provisions of the act as a valid ground supporting the trial court's order of dismissal.

In passing, we note that each party contends that certain safety standards or regulations of the department of labor and industries were violated by the other. However, in view of the fact that the appellant in the instant case had not elected to be covered by the provisions of the Workmen's Compensation Act, the safety standards or regulations would not seem to be applicable. Rem.Rev.Stat., § 7727, RCW 49.16.020, provides that the safety standards or regulations '* * * shall apply to all, and only those, establishments and employers and workmen subject to the provisions of' the Workmen's Compensation Act.

It remains for us to give consideration to the other grounds urged in support of the trial court's order of dismissal. Since respondent's motion for dismissal was made at the end of appellant's case, the appellant's evidence, and all reasonable inferences therefrom, must be considered in the light most favorable to him and interpreted most strongly against the moving party. Bleyhl v. Tea Garden Products Co., 30 Wash.2d 447, 453, 191 P.2d 851. Assuming compliance with the foregoing rule, then our decisions in McQuillan v. City of Seattle, 10 Wash. 464, 38 P. 1119, and Scott v. Pacific Power & Light Co., 178 Wash. 647, 35 P.2d 749, indicate that out problem thereafter is to determine, first, whether appellant's evidence (interpreted most favorably to him) provides a basis for a reasonable difference of opinion concerning the matter of respondent's alleged negligence or culpability; or, in other words, whether the minds of reasonable men would all agree that no negligence was shown on the part of the respondent; and, second, whether there would be similar unanimity in the reactions or mental processes of all reasonable minds that appellant (a) was contributorily negligent and (b) had assumed the risks of injury. In the Scott case, supra, 178 Wash. at page 658, 35 P.2d at page 754, we said:

'Upon an issue as to contributory negligence, where there is evidence and inferences to be deduced therefrom by which reasonable men may arrive at different conclusions, contributory negligence is a question for the jury. In passing upon that question, we must accept as true that view of the evidence most favorable to the respondent. Bryant v. Hartford Eastern R. Co., 158 Wash. 389, 290 P. 874.

"In but two classes of cases may the question of negligence be determined by the court as a conclusion of law: (1) Where the circumstances of the case are such that the standard of duty is fixed, and the measure of duty defined, by law, and is the same under all circumstances; (2) where the facts are undisputed and but one reasonable inference can be drawn from them. McQuillan v. [City of] Seattle, 10 Wash. 464, 38 P. 1119, 45 Am.St.Rep. 799. See, also, Burian v. Seattle Electric Co., 26 Wash. 606, 67 P. 214; Anderson v. Pacific National Lumber Co., 60 Wash. 415, 111 P. 337.

"And where the minds of reasonable men may differ the legal sufficiency is for the jury.' Bell v. Northwest Cities Gas Co., 164 Wash. 450, 2 P.2d 644, 646.

'In determining the question of contributory negligence, due care or ordinary prudence under the circumstances is the only test. Helliesen v. Seattle Elec. Co., 56 Wash. 278, 105 P. 458; North Coast P. Co. v. Cowlitz, C. & C. R., 108 Wash. 591, 185 P. 615. The existence of contributory negligence must be judged by respondent's condition and surroundings at the time of the accident and whether under the circumstances he acted as a reasonably prudent man would have done.

"After an accident happens, it is always easy to see many ways by which it could have been avoided, but such considerations do not usually afford a correct test of negligence. A victim of an accident is entitled to have his conduct judged by the circumstances surrounding him at the time of the accident by the conditions as they appeared to one in his then situation, and, if his conduct when so judged appears to be that of a reasonably prudent person, he cannot be said to be guilty of negligence.' Hull v. Seattle, Renton & Southern R. Co., 60 Wash. 162, 110 P. 804, 806.

'Ordinarily, the question of contributory negligence is for the jury. A court will determine the question only when but one reasonable conclusion can be reached from a given state of facts. * * *'

We note it is fairly easy and perhaps somewhat disarming to state the so-called pertinent principle as an abstract matter. But its beguiling simplicity fades upon its application to concrete situations. Then the going becomes more difficult, to say the least. Does the phrase, 'reasonable difference of opinion,' have an objective quality? Can the mental reactions of a hypothetical 'reasonable man' be ascertained accurately? What degree of scientific certainty is possible? These are some of the imponderables implicit in any use of the indicated phrases in disposing of the problems now confronting us in the instant case. In Newton v. Pacific Hy. Transport Co., 18 Wash.2d 507, 511, 139 P.2d 725, 728, Robinson, J.,...