Poling v. Charbonneau Packing Corp.

• Decision Date: 30 December 1954
• Docket Number: No. 33028,33028
• Citation: 45 Wn.2d 845,278 P.2d 375
• Court: Washington Supreme Court
• Parties: John POLING, Jr., Respondent, v. CHARBONNEAU PACKING CORPORATION, Appellant.

Page 845

45 Wn.2d 845

278 P.2d 375

John POLING, Jr., Respondent, v. CHARBONNEAU PACKING CORPORATION, Appellant.

No. 33028.

Supreme Court of Washington, Department 2.

Dec. 30, 1954.

Olson & Palmer, and J. W. McArdle, Yakima, for appellant.

Tonkoff, Holst & Hopp, Yakima, for respondent.

HILL, Justice.

This is an appeal from a judgment entered on a verdict for the plaintiff in an action for personal injuries sustained while he was operating a tractor for the defendant. The issues before us relate to negligence, assumption of risk, and contributory negligence, all of which were, we assume, submitted to the jury by proper instructions. The same issues were presented to the trial court by appropriate motions during the trial, and finally by a motion for a judgment notwithstanding the verdict. The trial court determined that all of them were questions for the jury, and the jury determined them adversely to the defendant, appellant here.

Appellant can prevail on this appeal only if it can be said as a matter of law that there is no evidence or reasonable inference therefrom to sustain the verdict on those issues. Williams v. Hofer, 1948, 30 Wash.2d 253, 191 P.2d 306.

The jury could have found the facts to be as hereinafter stated. John Poling, Jr., had a fifth-grade education and was twenty-three years old at the time of his injury. He had worked in the Yakima valley as a laborer in fruit orchards since 1945 and had had about fifteen hours' experience driving a tractor before his employment in early February of 1953 by the Charbonneau Packing Corporation. Thereafter until his injury he did various kinds of work on a fruit ranch belonging to that corporation, including some jobs which involved operating a tractor (for about two and a half weeks). On April 17, 1953, the day before the accident, Poling and Charles Roche, who managed that particular ranch, were planting trees in an orchard and were utilizing the tractor and a trailer to haul the young trees and to haul water and dirt for the tree planting. At quitting time that day the trailer was backed against what is referred to in the testimony as a 'ditch bank' and was loaded with dirt, and they left it there overnight.

The trailer was attached to the tractor by means of a trailer-hitch assembly. This assembly consisted of a crossbar behind, parallel to, and lower than the rear axle; two lateral bars, the rear end of one attached to the left end of the crossbar and the front end bolted to the left side of the differential housing under the axle, the other similarly attached to the right side; and two bars forming an inverted V, the apex of which was connected to the top of the differential housing and the sides of which sloped down to the crossbar first described and were attached thereto near each end. The hitch itself was centered on the crossbar and was used to connect the tongue of the trailer to the assembly. The tractor seat was located above and in front of the differential housing. A utility chain that was usually carried on the tractor was wrapped over the protruding connection of the inverted V-shaped bar at the top of the housing.

On the morning of April 18, 1953, when Roche and Poling returned to the tractor and trailer, they found that the trailer had become 'bogged' down, and when an attempt was made to move it forward the wheels of the tractor spun and became buried five or six inches in the dirt. Several attempts were made to pull the trailer straight ahead, but without success. Poling then suggested that they unhitch the tractor, move it, and then hitch it at right angles to the trailer tongue in an attempt to pull the trailer out from the side. Roche removed the pin from the trailer hitch and Poling started to move the tractor ahead. While doing this he heard the chain fall from the differential housing where it had been resting, and saw it accidentally hook onto the trailer tongue. Continuing forward, he saw the chain become taut and asked Roche to unhook it; however, Roche told him to 'go ahead and try it ahead.' In response to this order, Poling drove the tractor forward. As he did so, the front end 'rared up' and the tractor tipped over backwards, pinning him under it and causing his injuries.

Roche, at the time of giving this order, was in a position to see the manner in which the chain was attached to both the trailer and the tractor. Although Poling knew that the utility chain was usually carried on top of the differential housing, he did not learn until after the accident that after it slipped one end was still fastened to the tractor at the connection on top of the differential housing, which, of course, was considerably higher than the rear axle. The leverage thus created forced the tractor over backwards when Poling attempted to drive forward.

The first question presented is whether we can say as a matter of law that Roche, appellant's ranch manager, was not negligent when, under the conditions then existing, he told respondent to 'go ahead and try it ahead.' (Roche denies giving the directions quoted or knowing that the chain had caught on the trailer, but the jury could and did accept Poling's version of what happened.)

Appellant contends that the manager's direction or order was not actionable negligence, and relies on the cases of Sainis v. Northern Pac. R. Co., 1915, 87 Wash. 18, 151 P. 93, and Kosinski v. Hines, 1920, 113 Wash. 132, 193 P. 209. In the Sainis case, a heavy rock was to be lifted from a flatcar. The danger was declared by the court to be as apparent to the plaintiff as to the foreman who directed him to lift the rock. The Kosinski case involved an injury suffered by the plaintiff while doing the same kind of work he had previously done without injury, with the same five men, i. e., that of lifting heavy channel bars. The court held that negligence was not established, the foreman having ordered six men to do a job that had been done safely by the same six men on previous occasions.

In cases which involve carrying or lifting heavy objects, it may well be true that the employee is the best judge of his own physical strength and lifting capacity, and the foreman may not be negligent in directing an employee to lift an object too heavy for him. However, in a case involving facts such as those in the case at bar, we believe the issue of negligence was properly submitted to the jury. A more apropos series of cases would be Christiansen v. McLellan, 1913, 74 Wash. 318, 133 P. 434; Lindquist v. Pacific Coast Coal Co., 1914, 81 Wash. 73, 142 P. 445; Walters v. Sievers, 1919, 107 Wash. 221, 181 P. 853; Long v. Shirrod, 1924, 128 Wash. 258, 222 P. 482; Prink v. Longview, Portland & Northern R. Co., 1929, 153 Wash. 300, 279 P. 1115. While the discussion in those cases is concerned primarily with the question of assumption of risk, it is necessarily recognized therein that an employer can be negligent in giving an order to an employee under conditions comparable to those existing in this case. Roche's negligence and hence that of appellant, represented a question for the jury.

The second contention of appellant is that respondent assumed the risk because (1) he assumed the ordinary dangers incident to driving a tractor, and (2) the chain hook-up, as it existed at the time of the accident, was open and obvious, and brought into play the natural forces of leverage.

The facts...