1 Reported in 116 P.2d 288. Action was instituted to recover damages from defendants on account of injuries suffered by plaintiff when he fell from a grating inside a ship onto steel tanks some twenty feet below.
The amended complaint alleged that defendant Nieder Marcus, Inc., purchased the engine in the *Page 83 barge "Mazama"; that, to expedite its removal from the ship's hold, defendant removed certain engine room gratings and a steel stairway; that at the top of the stairway there was located a steel platform or grating; that defendant negligently failed to replace certain bolts supporting and securing the platform; and that this dangerous condition was concealed and unguarded. It was further alleged that, July 1, 1936, plaintiff, in performing a duty for Commercial Boiler Works, Inc., stepped upon the platform, which collapsed and caused him to fall onto the edge of a circular steel tank some twenty feet below; and that he was severely injured by the fall, suffering damages in the sum of fifty thousand dollars.
The answer of Nieder Marcus, Inc., denied all the allegations of negligence contained in the amended complaint. The answer alleged that the time allowed by the statute of limitations for bringing the action had expired and that plaintiff was guilty of contributory negligence. The reply put in issue the charges made by defendant.
At the close of plaintiff's case, defendant Commercial Boiler Works, Inc., was dismissed. The case was then submitted to the jury and resulted in a verdict in favor of plaintiff and against Nieder Marcus, Inc. Defendant Nieder Marcus, Inc., has presented this appeal.
The assignments of error are (1) in denying appellant's challenge to the sufficiency of the evidence and motion for nonsuit, (2) in the admission of testimony, (3) in the refusal to give certain instructions and in the giving of one instruction, (4) in denying appellant's motion for judgment n.o.v., (5) in denying appellant's motion for a new trial, and (6) in entering judgment against appellant.
The pertinent facts are these: In converting the *Page 84 barge "Mazama" from a self-propelled salmon cannery into a fish reduction plant, the owner sold the sixty-eight ton, triple expansion marine engine to appellant. It was the agreement that appellant would remove the engine from the boat at its own expense. Under the personal supervision of appellant's president, Benjamin Marcus, and with the assistance of three or four men, removal work commenced May 15, 1936, and was completed May 26, 1936.
For maintenance purposes, the engine was surrounded with catwalks or gratings. Attached to one of the catwalks was a steel stairway which extended upward about twenty feet on the starboard side of the engine room. The top of the stairway was connected to a platform or small grating. This platform was bolted to another catwalk which encircled a portion of the hold. To the right of the platform as approached from the stairway was a door which opened to the upper deck.
In order to move the engine from the ship, various catwalks had to be displaced. Although the testimony is in conflict, it appears that appellant removed the engine gratings, the stairway, its railing, and a supporting post. At first it was decided to displace all the upper catwalks, but later appellant concluded to leave most of them, including the above-mentioned platform, located at the head of the stairway and in front of the door. There was evidence that the bolts which secured the platform to the upper catwalk were taken out. However, it was not definitely shown that appellant did so.
After the engine had been removed, the Commercial Boiler Works proceeded to install a number of circular steel tanks and to replace the gratings. July 1, 1936, respondent, an employee of the barge owner, in order to assist in replacing the stairway stepped upon the *Page 85 platform. Almost immediately thereafter, the platform collapsed, causing respondent to fall astride the rim of one of the installed circular tanks some twenty feet below.
The only warning of the platform's dangerous condition was a rope stretched across the doorway. There was some testimony that another rope stretched from the wall to the railing of the upper catwalk a few feet from where it joined the platform. As to its presence on the day of the accident, a conflict in the testimony exists. Although employees of other parties were working in the barge, it was shown that only those of appellant had anything to do with the removal of the engine catwalks, the stairway, its railing, and the supporting post.
The above stated facts are gleaned from testimony given by witnesses called by respondent for the reason that appellant did not offer evidence on its behalf, but rested after respondent had introduced his evidence.
[1] Appellant challenges the right of the trial court to submit the case to the jury on the ground that no negligence was shown. In regard to this challenge, respondent is not only entitled to have all evidence weighed in his favor, but also every reasonable inference that is deduced from the evidence.
We are not triers of fact. Our duty extends only to ascertain whether substantial evidence was presented to the jury which would warrant it in deciding for respondent.
An examination of that evidence discloses that the removal of the engine was under appellant's sole supervision; that the engine grating, the steel stairway, its railing, and a supporting post were taken out to facilitate the displacement of the engine; and that, with the exception of two lag screws below the door sill, *Page 86 the platform was left with little or no support. This evidence, together with the other facts, forms a chain of circumstances which tends to establish the further fact that two certain bolts, connecting the platform to the adjacent catwalk and furnishing additional support, were removed by appellant's employees. Hence, the insecure, and thus dangerous, condition of the platform may be attributed to appellant.
[2] That circumstantial evidence may be used to prove negligence like any other fact is clearly established by decisions of this court. Helland v. Bridenstine, 55 Wn. 470,104 P. 626; St. Germain v. Potlatch Lumber Co., 76 Wn. 102,135 P. 804; Sweeten v. Pacific Power Light Co., 88 Wn. 679,153 P. 1054; Sandanger v. Carlisle Packing Co.,112 Wn. 480, 192 P. 1005, affirmed, 259 U.S. 255, 66 L.Ed. 927,42 S.Ct. 475; Peterson v. Great Northern R. Co., 166 Wn. 538,7 P.2d 963; Nelson v. West Coast Dairy Co., 5 Wn.2d 284,105 P.2d 76.
In Sandanger v. Carlisle Packing Co., supra, plaintiff sought to recover for burns sustained by the explosion of a can of gasoline, supposedly containing kerosene, in starting a fire in a cook stove. Although the evidence did not definitely disclose that defendant made the mistake of putting gasoline in a can usually filled with kerosene, this court in passing on the question stated:
"The evidence does not disclose with certainty who filled the can or where it was filled, but there is some ground for inferring that it was filled by Stensland, the commander of the boat, from appellant's store of supplies on shore. It, in any event, seems to have been his duty to see that the can was filled. There is some evidence tending to show that appellant did not exercise due care in keeping its gasoline and kerosene receptacles in its store of supplies on shore properly designated so that their respective contents would be readily distinguishable. This evidence is not very *Page 87 satisfactory, but is of some moment in view of what actually happened."
In the case at bar, that no one observed just exactly what appellant did in expediting the removal of the engine is clear. However, the evidence shows that its workmen removed the supports (the steel stairway, its railing, and a support post) from the platform upon which respondent stepped, and that no warning signs were ever placed or posted to notify other workmen of the fact that the platform was insecure.
[3] Appellant next contends that, assuming negligence, it cannot be held liable for the reason that it had completed the removal work many days prior to the time of the accident, and that it owed no duty to furnish respondent a safe place in which to work. Its counsel argue:
"The breach of duty constituting negligence as far as respondent was concerned was the failure thereafter of the boat owner to furnish him a safe place in which to work, a duty which we doubt could ever be delegated to someone else, but in any event, if appellant ever owed any such duty to respondent the same ended when the power of controlling the premises and maintaining their safety ended."
In support of this argument, appellant creates an analogy between the legal relations of an independent contractor and his employer, and the legal relations in the present case between appellant and the boat owner. From this analogy, it argues that, since the legal relations of the two situations are similar, the rights and duties arising therefrom are likewise similar.
To reach its desired conclusion of nonliability, our attention is then directed to Thornton v. Dow, 60 Wn. 622,111 P. 899, 32 L.R.A. (N.S.) 968, and similar independent contractor cases, which hold that a contractor is not liable to a third person for injuries sustained *Page 88 on the employer's premises after the construction was completed and the work accepted.
With this analogy and reasoning, we are unable to agree. That appellant is not an independent contractor is clearly established by the facts. The evidence very definitely disclosed that appellant was merely the purchaser of a boat engine under a contract of sale providing that appellant must undertake the removal at its own expense.
[4] Although appellant might be labeled a contractor, it was not an independent contractor as defined by the law. This term has acquired a specialized meaning, and should not be confused with other terms. It designates a person who, in pursuit of an independent business, undertakes to perform a specified piece of work or to render a particular service for another without submitting to control in the manner of performance. 1 Shearman and Redfield on Negligence (Rev. ed. 1941), 399-402, § 168;North Bend Lumber Co. v. Chicago M. P.S.R. Co., 76 Wn. 232,135 P. 1017; Johnston v. Seattle Taxicab Transfer Co.,85 Wn. 551, 148 P. 900. Thus a distinction must be made between (1) a person doing work for his own individual benefit, as in this case, and (2) a person doing work for another's benefit under such conditions as not to become a servant of the other, the case of an independent contractor.
[5] Rather than resemble the legal position of an independent contractor, the case at bar is, perhaps, more analogous to the situation of a sale by a landowner of a movable situated upon the land with an implied license to enter and remove within a reasonable time. 37 C.J. 283, § 178. See Welever v. AdvanceShingle Co., 34 Wn. 331, 334, 75 P. 863, 864, for a recognition of the principle.
That a licensee must perform the licensed acts in a *Page 89 reasonable and prudent manner is established by the authorities.
"If no mode of carrying out the license is prescribed, the act must be performed in the usual and reasonable manner. The license is a protection if the licensee acts in a proper and careful manner, and under such circumstances there is no liability for damages resulting from the act, but it is no protection from damages arising from improper conduct, whether intentional or due to a failure to exercise skill or care in doing the thing which the license authorizes." 37 C.J. 286, § 185.
[6] The case at bar must be decided upon the general principles of the law of negligence. In short, these are four: (1) The plaintiff must have sustained an unintentional invasion to a legally protected interest; (2) the defendant's conduct must have been negligent with respect to that interest; (3) the negligent conduct of the defendant must have been the proximate cause of the plaintiff's injury; and (4) the plaintiff must have exercised due care for his own safety. Restatement, Torts (1934), 734, § 281.
[7] Applying these rules to the case at bar, it is observed that respondent sustained injuries to his legally protected interest in bodily security; that appellant's conduct in failing to leave the engine room in a safe condition and in omitting to warn others of the dangerous condition of the platform, especially when it knew of the continued presence of other workmen, was negligent with respect to respondent's interest; that such negligent conduct created an unreasonable risk of harm to respondent and was the proximate cause of his injury.
That appellant had completed its removal work prior to the time of the accident does not militate against the fact that it created, maintained, and left a dangerous condition in the engine room. See Restatement, *Page 90 Torts (1934), 1033, § 386. Furthermore, it was clearly foreseeable that this condition involved an unreasonable risk of harm to others.
We conclude that, since appellant was in full charge of removing the engine, it should have left the engine room in a reasonably safe condition so as not to expose respondent to unnecessary danger. The evidence shows that the platform upon which respondent stepped was an integral portion of the iron catwalk which extended around a part of the hold, and gave the impression that it was all fastened together. There were no defects noticeable to a person standing in the position of respondent at the time he stepped on it.
In speaking of the appearance of the grating, respondent stated:
"Q. Was there anything about that little square of grating marked `M' that looked insecure? A. There certainly was not. Q. Or dangerous? A. No, sir. Q. Had you ever been warned that it was dangerous? A. No, sir."
[8] The evidence to which we have just referred demonstrates that the question of contributory negligence was for the determination of the jury under our rule that,
"`. . . before a court will be justified in taking from the jury the question of contributory negligence, the acts done must be so palpably negligent that there can be no two opinions concerning them.'" Jackman v. Seattle, 187 Wn. 446,60 P.2d 78.
Accord, Corbaley v. Pierce County, 192 Wn. 688,74 P.2d 993; Nystuen v. Spokane County, 194 Wn. 312, 77 P.2d 1002;Fabbio v. Diesel Oil Sales Co., 1 Wn.2d 234, 95 P.2d 788.
[9] Appellant presses upon us that the court erred in giving instruction No. 10, which reads:
"Whenever it develops in the course of a trial that there are witnesses available to one party or the other *Page 91 who, if called, could testify to material facts favorable to such party, then if such party fails to call such witnesses, or to explain his failure so to do, you are justified in assuming that, if called, said witnesses would have testified adversely to the interest of such party."
As we have stated, appellant did not introduce evidence, but rested at the conclusion of respondent's case.
This question relative to the instruction given is set at rest by our decision in the recent case of Wright v. Safeway Stores,Inc., 7 Wn.2d 341, 109 P.2d 542. In that case the defendants did not call three, or possibly five, witnesses who could have testified concerning the condition of a floor upon which plaintiff fell and was injured. The court gave the following instruction:
"`If you find that either party of the action has failed to produce evidence under the control of such party, then the law presumes that such evidence, if introduced, would be against the contention of such party.'"
Concluding that error had been committed in the giving of that instruction, the trial court granted a new trial. Upon an appeal, we upheld that action of the court and in so doing stated:
"In not every case where a party to an action has failed to produce a witness or witnesses under his control, who could have testified to material facts favorable to such party, and has failed to explain his failure so to do, can it be inferred that the testimony of such witness or witnesses, if produced, would have been unfavorable to such party, but a court or jury may draw such inference only when under all the circumstances of the case the failure to produce such witness or witnesses, unexplained, creates a suspicion that the failure to produce was a willful attempt to withhold competent testimony."
The error in this case is more apparent than the one in the case just cited. In this case, appellant decided, as it had a right to do, not to introduce evidence. *Page 92
The rule governing this situation is properly set forth in 22 C.J. 120, § 56, as follows:
"Where a party calls no witnesses, but submits his case in reliance upon the insufficiency of his adversary's evidence, no unfavorable inferences arise from his failure to call witnesses having special knowledge."
And, again, in 22 C.J. 112, § 53:
"Where defendant introduces no evidence, but submits the case on plaintiff's evidence, no presumption unfavorable to defendant arises from his failure to produce evidence peculiarly within his knowledge and possession."
Litigants must prevail upon the strength of their own case and not upon the weakness of their adversaries. To advise the jury, as was done by instruction No. 10, was, in effect, to tell it that appellant had a weak or no defense.
We find it unnecessary to discuss the asserted errors relative to the proposed instructions.
The judgment is reversed with instructions to grant a new trial.
ROBINSON, C.J., BEALS, and JEFFERS, JJ., concur.