Tabert v. Zier

• Decision Date: 08 February 1962
• Docket Number: No. 35706,35706
• Citation: 59 Wn.2d 524,368 P.2d 685
• Court: Washington Supreme Court
• Parties: Kurt TABERT, as Guardian ad Litem of Charles Tabert, a minor, Respondent, v. David ZIER and Emma Zier, husband and wife, Appellants.

Page 524

59 Wn.2d 524

368 P.2d 685

Kurt TABERT, as Guardian ad Litem of Charles Tabert, a minor, Respondent, v. David ZIER and Emma Zier, husband and wife, Appellants.

No. 35706.

Supreme Court of Washington, Department 1.

Feb. 8, 1962.

Palmer, Willis & McArdle, Yakima, for appellants.

Gavin, Robinson & Kenrick and Robert R. Redman, Yakima, for respondent.

HILL, Justice.

This is an action for personal injuries sustained by a minor, employed to stack baled hay, when a hay elevator collapsed on him. The appeal is by the defendants from a judgment entered on the verdict of the jury.

An undersanding of the operation of the machinery involved is necessary to any consideration of the questions of negligence, contributory negligence, and assumption of risk with which we are concerned.

The inclined chute (shown in the picture on this page) is thirty feet, six inches long and twenty inches wide. A moving conveyor belt operates in the chute and carries bales of hay to the higher levels of a stack to which they could not be coveniently lifted by hand. The conveyor belt is powered from a tractor.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

At the lower end of the chute, where the bales are placed on the conveyor belt, is a roller which rests on the ground; it can be seen in the picture. The upper end would be resting on the hay stack when in use (as shown in the sketch on this page).

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The angle of elevation of the chute must be changed from time to time as the stack gets higher, and this angle of elevation is regulated by a hand-operated mechanism described by the appellant as follows (some minor changes in wording having been made):

It consists of two bracings or 'frames' which support the chute, and also consists of a winch by which the chute is handcranked up or down as necessity requires--the cables of the winch being attached to these frames. These frames are designated in the sketch as 'A' and 'B' and we will so refer to them.

The 'B' frame extends from the wheel axle back toward the lower end of the chute. This is the anchor frame, i. e., it is so connected as to be immovable with respect to its position on the chute, although it is so hinged both to the chute and the wheel axle that the angle of tilt changes as the chute is raised or lowered.

The 'A' frame extends from the wheel axle and is the forward support of the chute. This frame is not fixed at the point where it supports the chute, instead the chute rests on small wheels at the upper end of each arm of the 'A' frame; this permits the 'A' frame to roll forward or backward along the bottom of the chute as the operator raises or lowers it. To raise the chute, the winch is cranked to the right, which shortens the cables between 'A' and 'B' frames, and raises the 'A' frame toward the perpendicular position; to lower it, the winch is cranked (or uncranked) to the left, lengthening the cables between the 'A' and 'B' frames and lowering the 'A' frame forward. When the elevator is raised to the height shown in the picture, the 'A' frame is a little short of being perpendicular. (The defendant fixes this as the position of the elevator at the time of the collapse; the plaintiff says the elevated end was not so high.) The weight of the chute keeps the 'A' frame from falling backwards toward the 'B' frame, and the tension of the cables keeps the 'A' frame from falling forward.

Such a winch is supposed to be equipped with a pawl and ratchet wheel to prevent the unwinding of the winch. (Whether there was such a pawl on this winch or, if there was, whether it was working, was one of the fact questions in this case. The pawl was referred to throughout the testimony as a 'dog,' and we shall use that appellation.) There was a short length of baling wire hooked around the crank handle and anchored to the 'B' frame. (Whether this was an adequate substitute for the 'dog,' if it was in fact missing or nonoperative, was likewise disputed.)

The plaintiff and his twin brother, then sixteen years of age, were hired by the defendant David Zier (who will be referred to as though he were the sole defendant) to stack baled hay on his ranch. The others assigned to that particular crew were the defendant's fourteen-year-old son, Ed Zier, and Andrew Montgomery; the latter worked for the defendant and his brother. Although an adult, Montgomery exercised no control or direction over the operation and was in no sense a supervisor or foreman. After a period of manual stacking, the stack then being seven to nine bales high on one end and perhaps twelve on the other, the defendant secured the hay elevator belonging to his brother to carry the bales of hay up to higher levels on the stack. The defendant, with all members of the crew, set the elevator up with the upper end of the chute resting against the stack. This was accomplished at about 11:00 a. m. The defendant connected the conveyor belt to the tractor's power takeoff and found that it was working properly. He then left, and the extent of his supervision of the stacking thereafter, until the plaintiff was injured at about 3:00 p. m., is in controversy.

What he said the last time he talked to the crew became one of the most important issues in the case. The defendant's testimony was that he said, 'Don't move that elevator until I get back,' and that it was a positive command. The plaintiff's version was that the defendant said, 'We will move the elevator when I get back,' and that the defendant, at the same time, instructed the plaintiff to 'top off' the stack, he having had experience in doing that part of the job. The plaintiff did not construe this as a command not to move the elevator.

The plaintiff testified that around 3:00 p. m. the stack had been built up to a height of fourteen bales for its full width and length, and terraced (or stairstepped, which is referred to as 'topping' the stack) back to a top row eighteen or nineteen bales in height. Several unplaced bales were left on top of the stack to fill in, where the chute had been resting, after the elevator was moved. (Different witnesses gave different versions as to the height of the stack.)

The plaintiff or his brother had, during that time (since 11:00 a. m.), winched up the chute several times as the stack got higher. They both said the elevator had been moved from one location to another between 11:00 a. m. and 3:00 p. m.; the move being without mishap. However, Ed Zier and Montgomery said there was only one attempt to move the elevator, and it was at that time that the plaintiff was injured. Whether this illfated move was over the protest of Ed Zier and Montgomery is disputed, but, in any event, all members of the crew were cooperating in moving the elevator when it collapsed. It was pushed back from the stack from three to five feet and, at the same time, turned to clear the stack.

The plaintiff was pushing back on the 'A' frame, i. e., toward the 'B' frame; this put him under the elevated portion of the chute. Ed Zier was pushing on one of the wheels to turn the elevator away from the stack and was also under the chute. The other two members of the crew (Bob Tabert and Montgomery) were lifting the bottom of the chute off of the ground, ten inches or a foot, and assisting in the turning. The chute, when clear of the haystack, started to tip. There was testimony that it tipped until the upper end of the chute hit the ground and then collapsed. The plaintiff saw his brother going upward as the bottom of the chute rose and the elevated end tilted downward. He thought he could hold up the elevated end of the chute, but instead of merely tilting on the fulcrum of the 'A' frame, like a teetertotter, the chute fell to the ground pinning the plaintiff beneath it. Whether the 'A' frame fell forward or backward became a matter of significant importance, as will be indicated later in this opinion.

For the most part, the appeal is an attempt to persuade this court to substitute its judgment for that of the jury on disputed facts, which we, of course, decline to do. Davis v. Bader (1961), 157 Wash.Dec. 771, 360 P.2d 352, and cases cited.

The collapse of the elevator raised a permissible inference of negligence that took that issue to the jury (res ipsa loquitur); and the negligence of the defendant, on the issue of inadequate instruction or supervision, was, likewise, a jury question.

The contributory negligence of the plaintiff or his assumption of the risk were also jury questions.

The specific claim of negligence because of a missing 'dog' and of an inadequate safety device to control the workings of the winch, presented a dispute of fact for the jury's consideration, if there was evidence that such negligence was a proximate cause of the collapse of the elevator. The defendant's contention that there was no credible evidence from which the jury could find proximate cause will be discussed hereafter.

Only four contentions of the defendant warrant discussion:

DID THE PLAINTIFF DISOBEY A COMMAND BY THE DEFENDANT?

We have heretofore indicated the different versions as to what the defendant said the last time he talked to the crew before the accident.

If the plaintiff disobeyed a positive command not to move the elevator until the defendant returned, the plaintiff was, as a matter of law, contributorily negligent (Richardson v. Pacific Power & Light Company (1941), 11 Wash.2d 288, 118 P.2d 985; Schmidt v. Pelz (1939), 198 Wash. 80, 87 P.2d 278), and the jury was so instructed.

The jury was likewise instructed that if the defendant's statement was that the elevator would be moved when he returned and that if such a statement could be construed as equivocal and not a positive command, or if he accompanied his order not to move the elevator with another order to 'top off' the stack, and that an employee of the age and experience of the plaintiff would reasonably ...