Rawlins v. Nelson

• Decision Date: 10 May 1951
• Docket Number: No. 31489,31489
• Parties: RAWLINS et ux. v. NELSON.
• Court: Washington Supreme Court

Page 570

38 Wn.2d 570

231 P.2d 281

RAWLINS et ux. v. NELSON.

No. 31489.

Supreme Court of Washington, Department 2.

May 10, 1951.

Rehearing Denied June 22, 1951.

Minnick & Hahner, Walla Walla, for appellants.

Casey & Johnson, Walla Walla, for respondent.

HAMLEY, Justice.

A. A. Rawlins was seriously injured when the tractor he was driving in the course of his employment on the farm of W. Frank Nelson went over a bank and overturned. Rawlins, who will be referred to as if he were the only plaintiff and appellant, and his wife, Dorothy Rawlins, brought this action for damages. The jury brought in a verdict for plaintiff in the sum of fifteen thousand dollars. The trial court denied defendant's motion for a new trial, but granted his motion for judgment notwithstanding the verdict of the jury. Judgment for defendant was entered accordingly. Plaintiff appeals.

The issues before us relate to contributory negligence, assumption of risk, and vice-principalship. The determination of these issues turns largely upon the particular facts of this case, and it will therefore be necessary to outline the evidence in considerable detail. In so doing we will give effect to the rule, applicable where a judgment n. o. v. is under review, that the court must not only accept as true all competent evidence in the record favorable to the party against whom the motion is directed, but must give such party the benefit of every favorable inference which may be reasonably drawn from such evidence. Fetterman v. Levitch, 7 Wash.2d 431, 109 P.2d 1064; Cox v. Old Nat. Bank & Union Trust Co., 17 Wash.2d 494, 136 P.2d 163; Wilcoxen v. City of Seattle, 32 Wash.2d 734, 203 P.2d 658.

Rawlins made his living operating his ten-acre sugar beet farm and working as a farm laborer for his neighbors. About ten days before the accident, which occurred on December 8, 1948, he went to work on Nelson's dairy farm near College Place, Washington. Nelson, who was at the farm only at milking time, gave Rawlins no instructions except as to his hours of work. He assumed that Rawlins would learn the routine from other employees.

One of the daily tasks on the dairy farm was to haul chopped hay to a feed rack which had been placed in what was known as the Bangs herd feed lot. This lot, situated on top of a hill, is about one hundred seventy-five feet long from east to west. It is about thirty-three feet wide at the east end and sixty feet wide at the west end. The south side of the lot, which is not fenced, runs along the top of a rather steep bluff or bank twenty to thirty feet high. The other three sides are fenced. The feed rack was located towards the west end of the lot. It was from twenty to twenty-five feet from the north and west sides of the lot, and from fourteen to seventeen feet from the top of the bank which marked the south side of the lot.

The entire feed lot slopes in a southwesterly direction. Approaching the south side of the feed rack from the east gate, the downhill grade is close to thirteen per cent. The grade immediately north of the feed rack is somewhat less steep, although it has a grade of fifteen per cent in spots. The soil in the feed lot is a light, chalky, volcanic ash which, when packed hard, becomes very slippery. On the day of the accident, the surface of the feed lot was covered with an accumulation of manure, mire and mud. The heaviest such accumulation was in the area north of the feed rack.

In carting hay to the feed rack, it was necessary to enter the lot at the east end, through a panel gate, so that advantage could be taken of the downhill grade. Two routes were possible: Along the north side of the feed rack and out through a panel gate at the west end, or along the south side of the rack and out through a swinging gate at the west end. This latter route, which we will call the south route, was the one customarily used by Nelson's employees both before and after Rawlins' accident. The south route was preferred because it had less of an accumulation of manure, mire and mud, and was ordinarily drier than the north route. Another reason why Nelson's employees usually chose that route was that the prevailing winds were from the south, and it was naturally desirable to unload the chopped hay with the wind rather than against it.

The record reveals only two instances when the employees had used the north route. Ernest Blue, one of these employees, had used the north route once when a north wind was blowing. Another employer, James Schmidt, tried the north route the day before the accident, but could not stop by the feed rack, and broke through the west end panel gate.

Two days before the accident, Rawlins, upon the suggestion or order of Blue, took the south route and completed the unloading of hay and made his exit from the feed lot without incident. This was the only time prior to the accident that Rawlins was given the task of filling the feed rack. There was a heavy rain on the night and early morning preceding the accident. Later in the morning Rawlins walked through the lot, and reached the conclusion that the north route was then impassable. One witness testified that the accumulation on the ground north of the feed rack was more than sixteen inches deep at that time.

It was approaching the noon hour when Rawlins drove into the lot through the east gate on the trip which ended in the accident. Blue was standing by the panel gate as Rawlins entered. Blue told Rawlins to take the south route, and to 'hug the bank' so that the trailer would clear the feed rack when Rawlins left by the west swinging gate.

When Rawlins entered the feed lot on this trip, he was driving a Farmall model 'M' tricycle type tractor. There was considerable testimony to the effect that this type of tractor is unsafe and unsuited for use on sloping ground, particularly where the surface is either soft or slippery. Under such conditions, it was stated, a tricycle type tractor is unstable, unmanageable and prone to skid suddenly out of control and overturn. Rawlins was an experienced dairy farm hand and was accustomed to use farm machinery of various kinds, including tricycle type tractors. However, he had had no previous experience operating such a tractor on sloping ground, except for the one trip he had made into the feed lot two days earlier when the ground surface was comparatively dry.

There was mounted upon this tractor a complicated hydraulic hoist known as a 'Farmhand,' which is useful in many farm tasks such as lifting objects, loading manure, and stacking hay. The Farmhand was not used in any of the feeding operations. It had been installed on the tractor about six weeks earlier to haul some dirt, and had not been used since then for any other purpose. The Farmhand has a steel superstructure weighing fifteen hundred to eighteen hundred pounds, mounted above the center of gravity of the tricycle tractor. The top of the implement is about eight feet about ground level. It has horizontal telescoping booms eleven to sixteen feet in length, to which is attached a manure fork weighing about three hundred pounds. Several witnesses testified that a Farmhand, when mounted on a tricycle tractor, greatly increases the tractor's instability. Rawlins had never operated a tractor so equipped prior to coming to work for Nelson.

The tractor driven by Rawlins with the Farmhand mounted upon it was pulling a four-wheel John Deere rubber-tired wagon. This wagon weighed about seven hundred fifty pounds empty, and was loaded with five hundred to seven hundred pounds of hay. Several witnesses testified that such a load, pushing the tractor from the rear on a 12.82 per cent grade in the feed lot, would add substantially to the operator's difficulty in controlling the tractor. The over-all length of the tractor, Farmhand and feed wagon was thirty-five feet six and one-half inches.

Entering the feed lot from the east, Rawlins swung the equipment to the south in accordance with Blue's suggestion or direction, which coincided with his own opinion as to the best route. When he reached a point about eighteen feet from the east end of the rack, he lost control of the tractor. The evidencde is in conflict as to whether this was due to an error on his part in stepping on the wrong brake, or to the inability of the described equipment to negotiate the slippery grade. In any event, the tractor and wagon went over the bank and overturned, severing Rawlins' right leg.

Appellant produced evidence tending to prove that respondent was negligent in failing to furnish a safe place to work; in failing to provide safe machinery for the use of his employee; in failing to instruct Rawlins in the proper use of the equipment and manner of entering and leaving the feed lot; in failing to provide proper supervision; and in failing to inspect the working conditions and equipment. Respondent produced controverting evidence, but the jury, comprised largely, as the trial court stated, of Walla Walla county farmers, apparently believed that negligence had been established.

The question of whether respondent was negligent in failing to provide reasonably safe equipment or a reasonably safe place to work, or in other respects, was apparently regarded as foreclosed by the verdict. Neither the trial court in its memorandum opinion, nor respondent in his brief on appeal, took the view that it should be held, as a matter of law, that Nelson was not negligent. We are therefore not called upon to discuss the question of primary negligence.

The first question presented for our consideration relates to assumption of risk. In granting judgment for respondent n. o. v., the trial court held, as a matter of law, that appellant assumed the risk of this kind of an accident.

By its instructions Nos. 7, 8 and 9, the court correctly advised the jury regarding the doctrine of assumption of risk, as applied to dangers normally incident to the occupation, and as applied to extraordinary...