He is not required to prove negligence beyond a reasonable doubt. St. Germain v. Potlatch Lumber Co., 76 Wn. 102, 135 P. 804; McGinn v. North Coast Stevedoring Co., 149 Wn. 1, 270 P. 113. In the former case, the rule is stated:
Patterson v. Bark Eudora, 190 U.S. 169; Resigno v. F. Jarka Co., 248 N.Y. 225, 240. The weight of authority in the inferior courts is that § 33 is applicable. Zarowitch v. F. Jarka Co., 21 F.2d 187; Mahoney v. International Elevating Co., 23 F.2d 130; Williams v. Oceanic Stevedoring Co., 27 F.2d 905; Peterson v. Independent Stevedore Co., 37 F.2d 615; McGinn v. North Coast Stevedoring Co., 149 Wn. 1; Schotis v. North Coast Stevedoring Co., 1928 A.M.C. 616; Ranstrom v. International Stevedoring Co., 152 Wn. 332. Mr. Ernie Adamson for respondents.
Goddard v. Interstate Telephone Co., Ltd., 1910, 56 Wn. 536, 106 P. 188. McGinn v. North Coast Stevedoring Co., 1928, 149 Wn. 1, 270 P. 113, 116; Etel v. Grubb, 1930, 157 Wn. 311, 288 P. 931; Focht v. Johnson, 1957, 51 Wn.2d 47, 315 P.2d 633, 634; Pacific Telephone Telegraph Co. v. Starr, 9 Cir., 1913, 206 F. 157, 161-162, 46 L.R.A., N.S., 1123. Rawlins v. Nelson, 1951, 38 Wn.2d 570, 231 P.2d 281; Myers v. Little Church by the Side of the Road, 1951, 37 Wn.2d 897, 227 P.2d 165; Hurst v. Washington Canners Co-op, 1957, 50 Wn.2d 729, 314 P.2d 651, 653.
A latent defect is "one which could not have been discovered by inspection...." Rottinghaus v. Howell, 35 Wash.App. 99, 108, 666 P.2d 899 (1983) (citing Arrow Transp. Co. v. A.O. Smith Co., 75 Wash.2d 843, 851, 454 P.2d 387 (1969)). See also McGinn v. North Coast Stevedoring Co., 149 Wash. 1, 18, 270 P. 113, 119 (1928) (a latent defect is a concealed or hidden defect or imperfection not discernible by reasonable examination such as the nature of the business reasonably permits). Here, both of the construction defects at issue could have been discovered by a reasonable inspection.
"The jury could reasonably find, on the basis of these facts, that the elevator company did not use reasonable care in ascertaining the cause of the trouble and in making repairs. It was not necessary to establish negligence by direct and positive evidence. As we said in McGinn v. North Coast Stevedoring Co., 149 Wn. 1, 9, 270 P. 113: "`. . . It [negligence of the master] may arise from circumstances and inferences to be deduced from the conditions as shown.
The rule of the LaBee cases, supra, has frequently been expressly approved in our decisions. Cleary v. General Contracting Co., 53 Wn. 254, 101 P. 888 (scaffold broke); Graaf v. Vulcan Iron Works, 59 Wn. 325, 109 P. 1016 (wheel on hand cart used for moving heavy metal broke); Penson v. Inland Empire Paper Co., 73 Wn. 338, 132 P. 39 (scaffold fell); McGinn v. North Coast Stevedoring Co., 149 Wn. 1, 270 P. 113 (chain broke); Thornton v. Van De Kamp's Holland Dutch Bakers, Inc., 181 Wn. 213, 42 P.2d 799 (awning crank slipped out of socket). Respondents assert that our decision in Lynch v. Ninemire Packing Co., 63 Wn. 423, 115 P. 838, is controlling.
The jury could reasonably find, on the basis of these facts, that the elevator company did not use reasonable care in ascertaining the cause of the trouble and in making repairs. It was not necessary to establish negligence by direct and positive evidence. As we said in McGinn v. North Coast Stevedoring Co., 149 Wn. 1, 9, 270 P. 113: ". . . It [negligence of the master] may arise from circumstances and inferences to be deduced from the conditions as shown.
". . . knowledge of the danger does not of itself constitute contributory negligence in law, and that it is for the jury to say whether knowing the danger the deceased used care and caution commensurate with the danger." In McGinn v. North Coast Stevedoring Co., 149 Wn. 1, 270 P. 113, the court said: "The law is also well settled that the employee does not assume the risk of his employer's negligence or the negligence of his agents or employees in the nonperformance of a non-delegable duty. [Citing cases.
[2] The doctrine of assumption of risk, as usually set forth and generally understood, is that one who, as servant or employee, enters into the service of another assumes by his very contract of employment the risk of all dangers ordinarily incident to the work upon which he engages. Goddard v. Interstate Tel. Co., 56 Wn. 536, 106 P. 188; Acres v. Frederick Nelson, 79 Wn. 402, 140 P. 370; Griffith v. Washington Water Power Co., 102 Wn. 78, 172 P. 822, affirmed on rehearing, 104 Wn. 694, 176 P. 343; Lander v. Shannon, 148 Wn. 93, 268 P. 145; McGinn v. North Coast Stevedoring Co., 149 Wn. 1, 270 P. 113; Cummins v. Dufault, 18 Wn.2d 274, 139 P.2d 308; 35 Am. Jur. 716, Master Servant, § 293; Harper, Torts, 289, § 130. In some of the cases above cited, it is also declared that a servant assumes the extraordinary risks of his employment if they are open and apparent, although due directly to the master's negligence.
He is not required to prove negligence beyond a reasonable doubt. St. Germain v. Potlatch Lumber Co., 76 Wn. 102, 135 P. 804; McGinn v. North Coast Stevedoring Co., 149 Wn. 1, 270 P. 113. In the former case, the court said: