Sitarek v. Montgomery , 32 Wash. 2d 794 ( 1949 )

The majority opinion states:

"We are mindful of the rule that, upon an appeal from a judgment entered upon the verdict of a jury, the evidence which is introduced in the cause should be so considered as to support the jury's verdict, and that the judgment should be affirmed unless it be held, as a matter of law, that the verdict finds no support in the evidence."

The opinion then proceeds to state that "Mr. Ladely testified that he told Lucy that Mrs. Montgomery was having trouble and that, during the evening, he would be either at Mrs. Montgomery's home or somewhere in the neighborhood."

I wish to add briefly to the facts as stated by the majority. On the evening in question, Mr. Ladely drove Mrs. Montgomery home from work, and she told him of the trouble she was having with Clark. About six-thirty, while she was preparing dinner, Clark tried to get in again. She had a gun in the house and threatened to shoot him. He left, saying he would return. She then ran across the street with her three children, to the Ladelys. She was in a highly nervous state and told of having driven off Clark with a gun. Later, her brother-in-law and stepfather came and took her home. Ladely went with them, but returned soon because his wife was going to a shower, and he was to stay home and take care of their boy.

Shortly after Mrs. Ladely left, and at about seven o'clock, Ladely went to the Sitarek house to get Lucy, who was fourteen years old, to come to his house and act as a baby-sitter. In a very short time he left, telling her he was going to Mrs. Montgomery's. Lucy denied that he told her that Mrs. Montgomery was having trouble, or that he said that, during the evening, he would be either at Mrs. Montgomery's home or somewhere in the neighborhood. She testified that she knew nothing of Mrs. Montgomery's trouble.

When Ladely got to the Montgomery house, the brother-in-law and stepfather were just leaving. As they were leaving they saw Clark lurking around outside and chased him. They reported this to Mrs. Montgomery and Ladely.

It must be remembered that this case was submitted to a jury, which rendered a verdict for the plaintiff; that the Ladely community presented a motion for judgment n.o.v. which was denied by the trial court; and that this appeal is from the order denying such motion.

A challenge to the sufficiency of the evidence, a motion for nonsuit, a motion for a directed verdict, or a motion for judgment notwithstanding the verdict admits the truth of the plaintiff's evidence and all inferences that can be drawn therefrom, and requires that the evidence be interpreted most strongly against the defendant, and in the light most favorable to the plaintiff. Billingsley v. Rovig-Temple Co., 16 Wash. 2d 202, 133 P.2d 265, and cases cited therein.

Having the above test in mind, in reviewing the ruling on a motion for judgment n.o.v., we must consider the following evidence. The Ladely community, acting through Mr. Ladely, employed Lucy as a baby-sitter on the night in question. She knew nothing of Mrs. Montgomery's trouble. Mr. Ladely did not so advise her, although he was well aware of it. He had brought Mrs. Montgomery home from work that evening, and she had told him of her trouble. At six-thirty that evening, she had come over to the house in a highly nervous state, with her three children, and had told of driving off Clark with a gun. He went over to her house to protect her from Clark. He told Lucy where he was going. Under the circumstances, he should have realized that she, as his employee, might have occasion to seek him out. Here was a fourteen-year-old girl who, by virtue of the contract of employment, was entitled to reasonable protection. Being aware of the highly dangerous and explosive situation existing, it was his duty to warn her. She should have been advised as to any and all dangers and hazards she might reasonably be expected to encounter in carrying out her duties as a baby-sitter. His failure to warn her constituted negligence. This negligence was the negligence of the community. The community hired her, and the community owed that duty to her.

The following rule is stated in Restatement of the Law, 1183, Agency, § 504:

"The master's duty as to working conditions does not extend to the condition of premises not in his control, nor to the conduct of third persons with whom the servants are to be brought into contact during the course of the work, except that he has a duty to disclose dangerous conditions of which he should know.

"Comment: . . .

"b. Duty of Warning. The master's duty that care be used to make the conditions of employment reasonably safe for his servants includes a duty of supervision over the conditions under which they work, and a duty of warning them of dangerous conditions of which he should know. Thus, if a builder employs a subcontractor to do work upon the premises which he controls, his duty of supervision includes a duty of care to see that the conditions created by the subcontractor are not harmful to his own servants, and if he becomes aware of dangerous conditions he is under a duty to use care to correct them or to warn his servants. Likewise, a master is subject to liability to his servants for directing them to work, without warning, in the vicinity of third persons who, as he should know, are likely to harm his servants, as where the master knows that the third persons are doing work intrinsically dangerous to those in the vicinity or that his servants are likely to be hurt because of their ignorance of work being done near them."

In Holshouser v. Denver Gas Electric Co.,18 Colo. App. 431, 72 P. 289, it was held that where a master had knowledge, when he employed a servant, that the latter was in danger of being injured by striking employees, and the servant had no knowledge of this fact, and was shot by striking employees after having been employed about eighteen days, the master's failure to give the servant warning was actionable negligence, in that the employer knowingly exposed the employee to personal danger, and concealed the danger from him.

In Baxter v. Roberts, 44 Cal. 187, 13 Am. Rep. 160, Roberts was the owner of a certain lot, and employed the plaintiff to perform labor there as a carpenter. While Roberts, the plaintiff, and another employee, were tearing some boards from a newly erected fence, they were shot at from an adjoining lot and the plaintiff was injured. The evidence showed that when Roberts hired the plaintiff he knew, or had information such as would reasonably lead him to believe that his interference with the newly constructed fence would be forcibly resisted; and that such knowledge was not conveyed to the plaintiff. In holding Roberts liable for damages sustained, the court said:

"The general principle which forbids the employer to expose the employee to unusual risks in the course of his employment, and to conceal from him the fact of such danger, is not affected by the fact that the danger known to the employer arose from the tortious or felonious purposes or designs of third persons acting in hostility to the interests of the employer and through agencies beyond his control. The employee is as clearly entitled to information of such known danger of that character as of any other the existence of which is known to the employer. The employer, if he knew or was informed of a threatened danger of that character, was bound to communicate the information to his employee about to be exposed to it in the course of his employment and in ignorance of its existence. The nature or character of the agency or means through which the danger of injury to the employee is to be apprehended can make no difference in the rule, for the employee is entitled in all cases to such information upon the subject as the employer may possess, and this with a view to enable him to determine for himself if at the proffered compensation he be willing to assume the risk and incur the hazard of the business; and if the employer have such information or knowledge and withhold it from the employee and the latter afterwards be injured in consequence thereof, the employer is liable to him in damages therefor."

I am fully cognizant of the "foreseeability" doctrine. In applying that doctrine, however, the court must use the test of a reasonable man.

"The standard by which the conduct of a person in a particular situation is judged in determining whether he was negligent is the care which an ordinarily prudent person would exercise under like circumstances. As has been said, negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. Concisely stated, the test of due care is the supposititious course of an ordinarily prudent and careful person under the same circumstances." 38 Am. Jur. 676, Negligence, § 30.

There is no question but that Mr. Ladely did not anticipate that Lucy would leave his house, where she was employed to take care of his child, and step up on the Montgomery porch. Neither did he foresee that Mrs. Montgomery would shoot through the door and hit Lucy. But those things actually did happen. It seems to me that he, as a reasonable man, having in mind his responsibility to this young girl, and realizing the situation in the Montgomery house, should have foreseen that what did happen, could have happened. A reasonable man would have, under the circumstances, warned her of the danger. When Lucy went across the street to Mrs. Montgomery's house, she was not on a project of her own. She went to see her employer to find out if she should leave the door unlocked or not. Her going over there was within the scope of her employment. She was injured as a proximate result of the negligence of Mr. Ladely, acting for the community, in failing to advise her of the danger. The jury found, under proper instructions, that the community was negligent in the performance of its duty to the respondent, and there is sufficient evidence to support the verdict.

The judgment should be affirmed.

May 2, 1949. Petition for rehearing denied.