Wong v. Swier

Decision Date10 April 1959
Docket NumberNo. 16116.,16116.
Citation267 F.2d 749
PartiesRose WONG and Kent Wong, Appellants, v. Walter SWIER and Laura Swier, Appellees.
CourtU.S. Court of Appeals — Ninth Circuit


Thomas K. Hudson, Alice Loveland, Denver, Colo., for appellants.

Homer B. Splawn, Yakima, Wash., for appellees.

Before POPE and JERTBERG, Circuit Judges, and YANKWICH, District Judge.

YANKWICH, District Judge.

In this action for personal injuries to the appellant Rose Wong, a resident of Idaho, — to be referred to hereinafter as "the appellant" (Kent Wong being joined merely because he was her husband), — alleged to have been caused by the negligence of the appellees Walter and Laura Swier, residents of Cowiche, Washington, through failure to furnish a safe ladder while she was engaged in picking apples in an orchard owned by the appellees, the jury's verdict was against the appellant. A motion for a directed verdict1 in favor of the appellant made at the conclusion of the testimony was denied, as was also a motion, made after the entry of the judgment for the appellees, for a judgment notwithstanding the verdict, or, in the alternative, to grant a new trial.2

Before us is an appeal from the judgment entered upon the verdict.3

This being a diversity case,4 the rights of the parties are governed by state law, — the District Court trying the case sat, in effect, as a State Court.5 This fact is of utmost importance, in this case because, in passing on the alleged errors committed by the trial court, we must apply the law of negligence and the law of master and servant of the State of Washington.

I The Law of Washington

Under Washington law, it is the duty of the employer to furnish to his employee a reasonably safe place in which to work6 and to provide him with proper and reasonably safe appliances and use ordinary care in so keeping them.7 However, the law of Washington recognizes that it is the duty of the employee to exercise reasonable care to avoid injury to himself. And in applying the doctrine, the Washington courts hold that the employee assumes the ordinary risks of employment or such extraordinary risks as are apparent to the ordinarily prudent employee.8

As stated in a late case:

"While it is the legal duty of an employer to furnish his employees a reasonably safe place to work, it is also the rule that one who, as servant or employee, enters into the service of another, assumes by his contract of employment the risk of all dangers ordinarily incident to the work upon which he engages (Walsh v. West Coast Coal Mines, 31 Wash. 2d 396, 197 P.2d 233) and also the extraordinary risks of employment if they are open and apparent, although due directly to the master\'s negligence.9

In the application of these doctrines, the Washington courts hold that whether the duty was or was not performed, whether the risk was or was not assumed, whether there was negligence or contributory negligence are questions of fact.10 And even where the facts are undisputed, unless they are of a character that reasonable persons can draw one inference only from them, a question of fact is present.11

II The Facts in the Case

In considering the facts in the light of the principles just outlined, we are mindful of the fact which has been stressed by this Court over a long period of years that on an appeal of this character we do not weigh the evidence but determine only whether there is "any or sufficient evidence to sustain (the) verdict."12

The reason behind the rule has been stated by the Supreme Court:

"Issues that depend on the credibility of witnesses, and the effect or weight of evidence, are to be decided by the jury. And in determining a motion of either party for a peremptory instruction, the court assumes that the evidence for the opposing party proves all that it reasonably may be found sufficient to establish, and that, from such facts there should be drawn in favor of the latter all the inferences that fairly are deducible from them. Texas & Pacific Ry. Co. v. Cox, 145 U.S. 593, 606, 12 S.Ct. 905, 36 L.Ed. 829; Gardner v. Michigan Central Railroad, 150 U.S. 349, 360, 14 S.Ct. 140, 37 L.Ed. 1107; Baltimore & Ohio R. R. Co. v. Groeger, 266 U.S. 521, 524, 527, 45 S.Ct. 169, 69 L.Ed. 419. Where uncertainty as to the existence of negligence arises from a conflict in the testimony or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them, the question is not one of law but of fact to be settled by the jury."13 (Emphasis added.)

So considered, we are of the view that there is substantial evidence in the record to sustain the verdict of the jury, and that the trial court was right in denying the motion for a directed verdict made at the conclusion of the presentation of evidence and the motion for a judgment notwithstanding the verdict made after the judgment on the verdict had been entered upon the ground that the only reasonable interpretation of the evidence was that the ladder was defective.

The complaint alleged negligence in failure to supply the appellant with a safe ladder on October 17th when she was employed as an apple picker in the appellee's orchard. The complaint also averred that the ladder furnished was unsafe, defective and dangerous, facts of which she alleged she was ignorant, and that while so engaged she fell, sustained severe injuries which she attributed to the dangerous and defective condition of the ladder. General and specific damages in the total sum of $100,000 were sought.

The Answer of the appellees admitted employment and the occurrence of the injuries but denied liability, and pleaded that whatever conditions existed

"in respect of the ladder and the use thereof were assumed by the plaintiff and the risk thereof, if there were any risk attached thereto."

In a pretrial order the following facts were admitted:

"1. That all defendants are residents of the State of Washington; that plaintiffs are residents and citizens of the State of Idaho; and that this Court has jurisdiction herein.
"2. That the plaintiff Rose Wong was on October 17, 1955, in the employ of the defendants Walter Swier and Laura Swier, and that as such employee she used a ladder furnished by these defendants, and that said defendants Walter Swier and Laura Swier were under a duty to furnish said plaintiff a safe ladder.
"3. That the plaintiff Rose Wong sustained injuries by reason of a fall from said ladder in the course of her employment."

As the judgment was against the appellant there is no need to go into a description of the injuries she suffered and the treatment and hospitalization she was forced to undergo. The more so, as the doctor and hospital brought in as defendants were eliminated from the case and the case proceeded only against the Swiers. There is no question that the injuries suffered were serious. What we are concerned with here is to determine whether, as contended by the appellant, a verdict should have been directed for the appellant. Such a verdict can be directed only if the evidence is such that the Court can say that legally, the evidence is capable of only one interpretation, and that is in favor of liability.14

It was the appellant's contention — as set forth in the Pretrial Order — that the ladder was defective in that the hinge or yoke assembly at the top of the ladder was loose, permitting excessive play in the ladder; that the hole in the metal plate and the side of the ladder were larger than the bolt used to hold them, thereby permitting the additional play in the ladder and twisting of the ladder in its use, and that it was this condition of the ladder which caused appellant's fall and injury.

There is a brief statement in her testimony which sums up the alleged manner in which the accident happened:

"The accident occurred on that morning after we had been in the orchard over an hour. I had climbed the ladder after I had set it carefully, testing it on both sides to see that it was well-balanced, and had ascended to the second rung from the top and picked the apples within reach and had turned, the apples were to the left. I turned my body slightly to the right in order that the bag which was then about full of apples would not hit on the ladder, and as I turned my body there was a quick give of the ladder. It went out from under my feet. I made a grab for a limb but could not hang on, and I fell."

Other facts testified to by her were: At the time, she was preparing to go down the ladder. She had no experience in picking apples prior to 1955. When the accident occurred she had picked apples in the orchard, using the same ladder, for several days. In September, for about a week, she had picked pears on the Swier place and had learned to fix and set a ladder. The apple orchard was practically level and was irrigated by an irrigation system that was corrugated. She never complained to Swier or anyone else about anything concerning the ladder.

On the day of the accident she had begun to work about 8 A.M. and the accident happened about 11 A.M. She had picked on more than seven trees. She had nearly finished the picking of the tree near which the accident occurred. The tongue of the ladder was towards the trunk of the tree and near the boxes of apples on the ground. She remembered placing the ladder solidly with the tongue centered making sure that the ladder was spaced solidly on the ground. She did not know whether anyone saw her fall or not.

When the accident occurred she was on the second rung from the top. She had been picking apples to her left. They were not immediately in front of her. The apples picked were placed in a bag. After the bag was full it was taken down and the apples put in boxes. When the accident happened she did not hear any sound at the top of the ladder. As she put it, "it gave away".

The appellant's version of the accident need not be accepted as the correct one. The question of negligence is one...

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