Cook v. Kinzua Pine Mills Co.

• Decision Date: 15 February 1956
• Citation: 207 Or. 34,293 P.2d 717
• Parties: Ruth COOK, Respondent, v. KINZUA PINE MILLS CO., a corporation, and Charles Geer, Appellants.
• Court: Oregon Supreme Court

Page 717

293 P.2d 717

207 Or. 34

Ruth COOK, Respondent, v. KINZUA PINE MILLS CO., a corporation, and Charles Geer, Appellants.

Supreme Court of Oregon.

Argued Oct. 31, 1955.

Decided Feb. 15, 1956.

Carl G. Helm, Jr., and C. Richard Neely, La Grande, argued the cause for appellants. On the brief was George H. Corey, Pendleton.

Maurice D. Sussman, Portland, argued the cause for respondent. On the brief were Alexander Schneider, Portland, and Mahoney & Fancher, Heppner.

Before WARNER, C. J., and TOOZE, BRAND and PERRY, JJ.

BRAND, Justice.

This is an action by Ruth Cook against the Kinzua Pine Mills Co., a corporation, and Charles Geer, seeking damages to her person on account of injuries inflicted upon her in a collision between the automobile which she was operating and a logging truck belonging to the defendant and operated by its employee, Charles Geer. The plaintiff recovered a verdict and judgment in the lower court and the defendant appeals, setting forth 19 assignments of error which are accompanied by a transcript of 342 pages. The collision occurred on a private logging road in Morrow county, Oregon. The complaint of the plaintiff sets forth her cause of action in two separate counts, both of which, however, relate to the same operative facts and the same injury.

The first count of the complaint alleges that the plaintiff's husband, James Cook, was an employee of the defendant corporation, and on the morning of the injury he had driven to the logging show of the defendant, at the end of the logging road referred to, and to the place where he was required to be pursuant to his terms of employment. His wife rode with him and was on the return trip when the collision between her car and a logging truck of the defendant occurred. She was operating her car in a northerly direction along the logging road and the defendant was operating the truck in a southerly direction. The complaint further alleges that the plaintiff drove her vehicle off the traveled portion of the road and brought it to a stop, leaving the entire traveled portion of the road free and unobstructed for the defendant's truck to proceed in a southerly direction, and 'that at said time the defendant then and there carelessly, recklessly and negligently drove said truck into and against the left door and side of plaintiff's automobile, causing severe and painful injuries to plaintiff'. (Italics ours.)

The specifications of negligence were (1) in failing to operate the truck upon the traveled portion of the highway; (2) in failing to keep a proper outlook for vehicles and persons on or adjacent to said highway and particularly this plaintiff and the auto she was then and there operating (3) in failing to operate said truck to the right of the automobile plaintiff was driving which was then and there in plain view of the operator of defendant's truck. The first specification of negligence was stricken, though we are at a lose to know why. It is alleged that the plaintiff was at the time six months pregnant, and the injuries alleged are serious. The complaint asks for general damages and for special damages on account of hospital, medical and other expenses.

The allegations of the second count in the complaint are substantially the same as those in the first count, except that it is alleged that at said time the defendants 'with knowledge of the presence of the plaintiff at said place, then and there recklessly and in a wanton manner, and with an utter disregard for the safety of plaintiff, drove, managed, and operated said truck into an against the left door and side of plaintiff's automobile', causing the injuries previously alleged, and that the injury occurred upon a private logging road. (Italics ours.)

The defendants filed a single answer to the two counts in the complaint. They admit that the accident referred to occurred upon the logging road know as the Porter Creek logging road, and admit that James Cook was an employee of the defendant and that there was a collision between the defendant's truck driven by Charles Geer and the sedan operated by the plaintiff. They deny that the plaintiff received any injuries. In their first affirmative defense the defendants allege that the road had been constructed for its use by the Kinzua Pine Mills Company and was essentially a one-way road with turnouts at intervals, and that the road was used by its trucks which were sometimes in excess of 29 feet long and 11 feet wide and weighing in excess of 16 tons and that the road was regularly traveled by such trucks, to the plaintiff's knowledge. It then alleges that the plaintiff was trespassing on the road and that trespassing was prohibited as was known to the plaintiff. For a second affirmative defense the defendants allege that the company had established the regulation that in the use of its private roads logging trucks had the right-of-way and that such regulation was well known to the plaintiff. They also allege that the plaintiff was guilty of negligence in that she operated the automobile upon the private road; failed to keep a proper lookout for other vehicles; failed to keep her automobile under any control; failed to give the truck at least one-half of the main traveled portion of the roadway; and failed to give the right-of-way to the truck of the defendant corporation. The reply was a general denial.

This appeal presents an interesting problem which, in its various aspects, is made to appear by assignments of error one to eight inclusive, and 13 and 14. As we have seen, in count one, it is alleged that plaintiff's injuries were caused solely by the careless, reckless and negligent acts of defendants. In count two it is alleged that the defendants 'with knowledge of the presence of the plaintiff at said place, then and there recklessly and in a wanton manner, and with utter disregard for the safety of plaintiff' drove their truck into plaintiff's automobile. It is apparent that different issues of law will arise depending on whether the evidence supports the allegations of count one or count two. These questions become important by virtue of the fact that defendants complain of the refusal of the trial court to require an election. The two counts differ in material respects. The first count which charges that defendants' acts were careless, reckless and negligent must be treated as an allegation of simple negligence. The mere addition of the word 'reckless' before the word 'negligent' did not remove the first count from the category of simple negligence. The word 'reckless' appears in conjunction with the word 'negligent' in most of the complaints coming to this court which are intended to charge and which have been held to charge simple negligence. That the charge is one of simple negligence is made clear by reference to the specifications of negligence which follow the general words. They are the typical allegations of 'failure' to keep a lookout and 'failure' to operate the truck to the right of plaintiff's car. The second count differs from the first both in kind and in degree.

If plaintiff was a trespasser, as claimed by the defendants, then mere proof of simple negligence as alleged in count one would not entitle her to recover. Akerson v. D. C. Bates & Sons, Inc., 180 Or. 224, 174 P.2d 953; Napier v. First Congregational Church, 157 Or. 110, 70 P.2d 43; Carr v. Oregon-Washington R. & Nav. Co., 123 Or. 259, 261 P. 899, 60 A.L.R. 1434; Lange v. St. Johns Lumber Co., 115 Or. 337, 237 P. 696; Kesterson v. California-Oregon Power Co., 114 Or. 22, 228 P. 1092; 3 Restatement, Torts, § 333; 38 Am.Jur., Negligence, § 109, pp. 773-4.

Again, if plaintiff proved only simple negligence on the part of the defendants she could not recover if defendant proved that she was herself guilty of negligence contributing to the accident. This would be true regardless of her status as invitee, licensee or trespasser. No citation of authority is necessary. On the other hand, if the plaintiff established her claim of wanton misconduct on the part of the defendants, as alleged in count two of the complaint, the defense of contributory negligence would not be available to the defendants. From Prosser on Torts, 2d ed., § 51, we quote:

'Where the defendant's conduct is actually intended to inflict harm upon the plaintiff, contributory negligence is not recognized as a defense. Thus it is no defense to an assault and battery. The same is true of that aggravated form of negligence, approaching intent, which has been characterized variously as 'wilful,' 'wanton,' or 'reckless,' as to which nearly all courts have held that ordinary negligence on the part of the plaintiff will not bar recovery. Such conduct differs from negligence not only in degree but in kind, and in the social condemnation attached to it. Many courts have said that in such cases the defendant's conduct is not the 'proximate cause' of the harm; but this is clearly unsound, for the causal connection is the same as in any ordinary contributory negligence case. It is in reality a rule of comparative fault which is being applied, and the court is refusing to set up the lesser fault against the greater. Thus if the defendant's negligence is merely 'gross,' an extreme departure from ordinary standards, but still without elements of 'wilfulness' or 'wantonness,' it is generally held that the plaintiff's ordinary negligence is a defense. * * *' And see, 38 Am.Jur., Negligence, § 178; 2 Restatement of Torts 1260-62, §§ 481, 482; Adkisson v. City of Seattle, 42 Wash.2d 676, 258 P.2d 461.

It is clear that even if the plaintiff was a trespasser or bare licensee and therefore could not recover for simple negligence of the defendants, yet she could recover on proof of wanton misconduct of the defendants, as alleged in count two. Akerson v. D. C. Bates & Sons, Inc.; Napier v. First Congregational Church; Lange v. St. Johns Lumber Co.; Kesterson v. California-Oregon Power Co.; 2 Restatement...