West v. Mount Vernon Sand & Gravel, Inc.

355 P.2d 795, 56 Wash. 2d 752, 1960 Wash. LEXIS 412

• Court: Washington Supreme Court
• Decided: September 22, 1960
• Docket: 34947
• Status: Published

Opinions

Finley, J.

— This is a common law negligence action. Ezekiel West, employed as a common laborer by Howard S. Wright & Co., was injured on a construction project (a large eight-place airplane hangar) at Larson Air Force Base near Moses Lake. He is not seeking industrial insurance benefits under the State Workmen’s Compensation Act. His claim is for civil damages against Mount Vernon Sand and Gravel, Inc., a subcontractor of his employer, Howard S. Wright & Co. Plaintiff claims that his injury was proximately caused by the negligence of a servant of the defendant subcontractor.

As a defense to this suit for damages, the defendant corporation has alleged contributory negligence. Defendant also claims third-party immunity under the Workmen’s Compensation Act for the reason that the plaintiff was allegedly engaged in extrahazardous employment at the time of the accident. The accident occurred on May 10, 1957. A provision of the Workmen’s Compensation Act which was then in effect (RCW 51.24.010) read as follows:

“Right of action against third party. If the injury to a workman is due to negligence or wrong of another not in the same employ, the injured workman . . . shall elect whether to take under this title or seek a remedy against such other . . . Provided, That no action may be brought against any employer or any workman under this title as a third person if, at the time of the accident, such employer or such workman was in the course of any extra-hazardous employment under this title. ...” (Italics ours.)

The Legislature repealed the above italicized immunity proviso in 1957 (Laws of 1957, chapter 70, § 23, p. 279). However, in Hammack v. Monroe Street Lbr. Co. (1959), 54 Wn. (2d) 224, 339 P. (2d) 684, a majority of this court held that this repeal is not to be applied retroactively. Consequently, under the statute as above quoted, the defendant is clearly immune from civil liability if the plaintiff was in fact’engaged in extrahazardous employment at the time of his injury. Denning v. Quist (1931), 160 Wash. 681, 296 Pac. 145; Robinson v. McHugh (1930), 158 Wash. 157, 291 Pac. 330.

At the trial, in order to support its claim of immunity, the defendant offered to prove that, prior to commencing this action, the plaintiff had filed a claim for industrial insurance benefits with the Department of Labor and Industries; that the claim had been allowed by the department, after' a determination that the plaintiff was in the course of extrahazardous employment when he was injured; and that no appeal had been taken from this ruling. The trial judge rejected this offer, ruling that the department’s action was not binding (res judicata) as to the plaintiff.

Following this ruling, testimony relating to the circumstances surrounding the accident was heard. The case was then submitted to the jury which found, in response to a special interrogatory, that the plaintiff was not engaged in extrahazardous employment at the time of the accident. The jury also returned a general verdict for the plaintiff; apparently, it found that the defendant’s servant was negligent, and that the plaintiff in no way contributed to such negligence. The defendant moved for judgment notwithstanding the verdict and for a new trial, contending (a) that, under the evidence, the plaintiff was engaged in extra-hazardous employment as a matter of law at the time of the accident; and (b) that, in any event, the plaintiff was guilty of contributory negligence as a matter of law. The trial court denied the motions and entered judgment for the plaintiff on the verdict. The defendant has appealed.

It is urged that the trial court erred: (1) in refusing to hold that the plaintiff was bound by the determination made by the Department of Labor and Industries; namely, that he was engaged in the course of extrahazardous employment at the time of the accident; (2) in refusing to hold that, under the evidence in this case, the plaintiff, was, as a matter of law, (a) in the course of extrahazardous employment at the time of the accident, or (b) in the alternative, that plaintiff was guilty of contributory negligence.

We are convinced that the issue raised by the first assignment of error is controlled by the opinion in Parker v. Pantages Theater Co. (1927), 143 Wash. 176, 254 Pac. 1083. In the Pantages case this court held that an injured person who files a claim with the Department of Labor and Industries, and who is allowed industrial insurance benefits upon a determination by the department that the injury was incurred in the course of extrahazardous employment, may, nevertheless, reject such benefits and initiate a common law action for civil damages. The appellant’s first contention is, therefore, without merit.

In contending that the respondent was engaged in extrahazardous employment, as a matter of law, at the time of the accident, the appellant relies on our recent decision in Gordon v. Arden Farms Co. (1958), 53 Wn. (2d) 41, 330 P. (2d) 561. In the present case respondent arrived at the construction job site at about 7:30 a. m., but there is no dispute that his work shift did not commence until 8:00 a. m. The evidence is in conflict as to whether the accident occurred prior to 8:00 a. m., or thereafter. It seems to us that, in answering the- special interrogatory, the jury resolved this debatable factual question in favor of the respondent; namely, that he was injured prior to the start of his work shift at 8:00 a. m., and thus before he commenced to earn his pay, and prior to the performance of the duties of his employment. The Gordon case, supra, is distinguishable in that, although the plaintiff therein was injured before she had actually commenced to operate the machine which she was employed to operate; nevertheless, she was injured at the precise time when she was supposed to be at her machine.

The rule establishing the requisite proof to support a conclusion of contributory negligence as a matter of law was set forth by this court in O’Brien v. Seattle (1958), 52 Wn. (2d) 543, 327 P. (2d) 433, as follows:

“Contributory negligence cannot be conclusively established by a state of facts upon which reasonable and fair-minded men may well differ. Contributory negligence can be determined as a matter of law only in the clearest of cases. . . . ”

The record in the instant case discloses that the respondent was injured when struck from behind by a “pre-mix” cement truck operated by the appellant’s servant. At the time, respondent was walking down a “pour” lane toward his designated place of work. There is some evidence that the respondent had reason to anticipate that a “premix” truck might be backing down the “pour” lane. However, the record also contains credible evidence that this particular truck was moving substantially faster than normal, and that the workmen who were ordinarily assigned to walk behind the truck to guide the driver were absent. There is, also, some evidence that the area on one side of the “pour” lane contained fresh cement, and the area on the other side contained impassable rubble, leaving only the “pour” lane for respondent’s use. We, therefore, cannot say that the trial judge erred in allowing the jury to decide whether the respondent was guilty of contributory negligence.

In view of the conclusions we have reached, the judgment of the trial court must be affirmed. It is so ordered.

Weaver, C. J., Rosellini, Foster, and Hunter, JJ., concur.