Bockman v. Mitchell Bros. Truck Lines, Inc.

• Decision Date: 08 January 1958
• Citation: 320 P.2d 266,213 Or. 88
• Parties: , 69 A.L.R.2d 152 Henry BOCKMAN, Respondent, v. MITCHELL BROS. TRUCK LINES, Inc., a corporation, Appellant.
• Court: Oregon Supreme Court

Page 266

320 P.2d 266

213 Or. 88, 69 A.L.R.2d 152

Henry BOCKMAN, Respondent, v. MITCHELL BROS. TRUCK LINES, Inc., a corporation, Appellant.

Supreme Court of Oregon, Department 1.

Argued Feb. 28, 1957.

Decided Jan. 8, 1958.

Howard K. Beebe, Portland, argued the cause for appellant. With him on the brief were Maguire, Shields, Morrison & Bailey, Portland.

Carlton Reiter, Portland, argued the cause for respondents. With him on the brief were Paul R. Harris, Stern, Reiter & Day, Portland.

Before PERRY, C. J., and ROSSMAN, BRAND and McALLISTER, JJ.

McALLISTER, Justice.

The plaintiff, Henry Bockman, brought this action against Mitchell Bros. Truck Lines, Inc., a corporation, to recover damages for personal injuries sustained by plaintiff when the boom of a crane operated by defendant struck an electric power line while the parties were engaged in loading metal pipe onto a truck. The jury returned a verdict in favor of plaintiff for $9,350 and from the judgment based thereon, defendant appeals.

Defendant contends that plaintiff was guilty of contributory negligence as a matter of law and for that reason, the court erred in failing to grant defendant's motion for a nonsuit and for a directed verdict.

Plaintiff and his partners, Orval LaCross and William LaCross, who were scrap metal dealers, had purchased some used metal pipe which was lying along the Lusted road east of Gresham in Multnomah county. A large water main had been replaced and the old pipe was strung alone the north side of the roadway for several miles. For about a week prior to May 5, 1953, plaintiff and his partners had been using a small crane to load the pipe onto trucks. The small crane proved unsatisfactory and plaintiff arranged with the defendant to furnish a larger crane and an operator to load the pipe and trucks and drivers to haul the pipe to Portland. Defendant was to receive an hourly rental for the use of the crane including the operator and a fixed amount per ton for the hauling.

Defendant's equipment was first used on May 5, 1953, and plaintiff was injured at about 3:00 o'clock in the afternoon of that day. When work started that morning an attempt was made to load some pipe which had been piled in a field but because both the crane and truck kept getting stuck, it was decided to move the equipment onto the road. During the remainder of the day pipe was loaded from along the road with both the crane and trucks standing on the road.

There was an electrical transmission line along the north side of the road with two crossarms on each pole. The upper crossarm was fastened near the top of the pole and carried near each end a bare electrical wire. The wire on the side toward the road carried a high voltage of electricity. The wire on the other end of the crossarm was a neutral wire. The lower crossarm carried on each side thereof a number of telephone wires. The telephone wires carried a low voltage of electricity and were harmless even upon direct contact. The distance between the two crossarms is not disclosed by the evidence.

The photographs in evidence indicate that the pipe was lying adjacent to the road approximately underneath the telephone and power lines. The crane was mounted on a truck chassis and when the accident occurred, was standing at the north edge of the improved portion of the roadway. The truck then being loaded was also standing on the road immediately to the west of the crane. In picking up the pipe it was necessary to swing the boom of the crane to the north toward the wires. The evidence does not disclose the height of the wires above the ground nor the length of the boom. The photographs clearly show, however, that the boom was long enough to reach the charged electrical wire on the upper crossarm.

The cable with which the pipe was lifted was fitted with hooks to be attached to the pipe. The plaintiff was helping with the loading operations and occasionally hooked the cable to the pipe. When plaintiff was injured he was standing on the ground near a piece of pipe waiting as the crane operator swung the boom around and lowered the cable so that plaintiff could hook the cable to the pipe. As plaintiff was looking up and reaching for the hooks the boom struck the 'hot' wire and plaintiff suffered a severe shock which rendered him unconscious and caused the injuries of which he complains.

In contending that plaintiff was negligent as a matter of law, defendant relies on the following rule stated in Carroll v. Grande Ronde Electric Co., 47 Or. 424, 443, 84 P. 389, 394, 6 L.R.A.,N.S., 290:

'* * * the rule of law is that one who voluntarily assumes a position of danger, the hazards of which he understands and appreciates, cannot recover for an injury from a risk incident to the position. Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 29 N.E. 464, 31 Am.St.Rep. 537; Robinson v. Manhattan Ry. Co., Com.Pl., 25 N.Y.S. 91.'

Whether plaintiff was negligent as a matter of law must be decided primarily on the basis of plaintiff's own testimony. We will therefore first summarize the testimony given by plaintiff before quoting some of the pertinent portions thereof from the record. Plaintiff testified in substance:

(a) That during the morning he heard the LaCrosses say that 'they was getting a little tingle and that we should watch those wires, and we went over and warned the crane operator about it.'

(b) That plaintiff himself warned the crane operator about keeping out of the wires 'once or twice' in the morning and again 'about one time' in the afternoon.

(c) That 'practically the whole morning we had to tell him, we had to warn him to keep out of the wires.'

(d) In referring to the number of times that the crane operator had been warned about swinging the boom into the wires, plaintiff said, 'I gave him a figure of a dozen times but that figure meant between all of us, LaCrosses and Ed Zeller and myself. That is what I meant when I said a dozen times.'

(e) That plaintiff warned the crane operator to keep out of the wires out of concern for his life and the life of the others around there.

(f) That on several occasions when the boom was caught between the wires 'we wouldn't touch it because the boys previously in the morning got shocked by it.'

(g) That at times when plaintiff and the others saw the boom getting close to the wires, 'we dropped the cable and we run away, back away from there.'

(h) That after these warnings had been given the crane operator 'continued on the way he had handled all the others.'

Before quoting from the testimony, we point out that plaintiff had testified at a prior trial of this case which resulted in a mistrial before the case was submitted to the jury. The references to plaintiff's testimony in a deposition refer to his testimony at such prior trial. Concerning the number of times that the operator was warned, plaintiff testified in part as follows:

'Do you remember giving this testimony in your deposition, page 27: 'How many times in the morning did he get hooked up in the wires? Answer: Practically the whole morning we had to tell him, we had to warn him to keep out of the wires.'

'And further on that testimony, further on the same page: 'Many times he was caught in between the wires with the boom, and we wouldn't touch it because the boys previously in the morning got shocked by it.'

'Do you remember giving that testimony? A. Yes, sir.

'Q. And you remember those occasions now, do you not? A. Yes, sir.

'Q. So that many--on many occasions that morning his boom was caught up in those lower wires? A. Several occasions.

'Q. Several occasions. And you remember that now? A. Yes.'

The testimony of plaintiff concerning his reason for warning the operator of the crane included the following:

'Q. And that warning was to keep out of the wires? A. Yes.

'Q. And the reason you did that was for--was out of concern for your life and the life of the others around there; that is right, is it not? A. Yes, sir.'

Concerning his appreciation of the danger involved, plaintiff testified as follows:

'Q. Now, referring back to your testimony on page 29: This is preliminary: What did you say on the occasions when you did warn him? 'Watch her; you are hitting the wires.' You remember that testimony? You remember that? A. Yes, sir.

'Q. And then the question: 'And when you saw it getting close to the wires, you would drop the cable also?' 'We dropped the cable and we run away, back away from there.' Do you remember giving that testimony? A. Yes, sir. I remember giving that but when I said 'we,' I wasn't just speaking for myself, I was speaking for the other boys as well.

'Q. All of you? A. Yes.

'Q. You would all drop--when you would see it getting close in there on several occasions, on the occasions of that particular day--I'm not speaking about this time when you got, when you actually got the shock, but on other occasions when you saw it coming near the wires, would you drop the cable and run back from there? A. Yes.'

Concerning the effect of the warnings on the conduct of the crane operator, plaintiff testified as follows:

'Q. And after these warnings were given him about getting too close to the wires, he continued on the way he had handled all the others; is that right? A. That's right, sir.'

The rule quoted from Carroll v. Grande Ronde Electric Co., supra, is stated in 1 Prosser, Torts (2nd ed.) 303, § 55, in the following language:

'The defense of assumption of risk rests upon the plaintiff's consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of harm from a particular risk. Such consent may be found:

* * *

* * *

'(b) By implication from the conduct of the parties. When the plaintiff enters voluntarily into a relation or situation involving obvious danger, he may be taken to assume the risk, and to relieve the defendant of responsibility. Such implied assumption of risk requires knowledge and appreciation of the risk, and a...