Cutsforth v. Kinzua Corp.

• Citation: 517 P.2d 640,267 Or. 423
• Parties: Orville CUTSFORTH, Jr., Personal Representative of the Estate of Gene Watson Cutsforth, Deceased, Appellant, v. KINZUA CORPORATION, a Washington corporation, Respondent.
• Decision Date: 31 December 1973
• Court: Supreme Court of Oregon

Page 640

517 P.2d 640

267 Or. 423

Orville CUTSFORTH, Jr., Personal Representative of the Estate of Gene Watson Cutsforth, Deceased, Appellant, v. KINZUA CORPORATION, a Washington corporation, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted at Pendleton May 7, 1973.

Decided Dec. 31, 1973.

Robert G. Hawkins, Gresham, and Thomas Cavanaugh, Portland, argued the cause for appellant. With them on the briefs were Hawkins, Germundson & Scalf, Gresham, and Schouboe & Cavanaugh, P.C., Portland.

George H. Corey and Steven H. Corey, Pendleton, argued the cause for respondent. With them on the brief were Corey, Byler & Rew, Pendleton.

BRYSON, Justice.

This is an action for wrongful death arising out of a collision between the plaintiff's decedent's automobile and defendant's log loader. Defendant filed a counterclaim for damages to its log loader. Oregon's comparative negligence statute, ORS 18.470, was in effect at the time of the accident. The jury, by 'SPECIAL FINDINGS OF FACT' (ORS 17.415), found that plaintiff's decedent was 56 percent negligent and defendant was 44 percent negligent. The trial court entered judgment that plaintiff 'recover nothing under the complaint' and that defendant 'recover nothing on its counterclaim * * *.' Plaintiff appeals and defendant cross-appeals.

The accident occurred at approximately 11:30 p.m. on September 10, 1971, on Highway 74 near Heppner, Oregon. Defendant operated a lumber mill on property which was bisected from north to south by Highway 74. Felix Schwarzin, defendant's employee, had been operating the log loader in a yard in the southwest portion of the mill. As Schwarzin was driving the machine north on Highway 74 to a storage garage located across the highway, the decedent's vehicle ran into the rear end of the log loader in the east lane of traffic.

The log loader was a 25-ton, four-wheeled vehicle equipped with four flood-type headlights directed forward and two flood-type headlights and two red taillights directed to the rear.

Schwarzin testified that at the time of the accident all of the log loader's lights were illuminated and his speed was between ten and twelve miles per hour. The log loader was not equipped with a rearview mirror or a slow-moving vehicle emblem.

Prior to the accident, plaintiff's decedent was observed having drinks in two cocktail lounges. The decedent left the Wagon Wheel Lounge in Heppner at approximately 11:30 p.m. and headed north on Highway 74. Several minutes later decedent's vehicle struck the rear end of defendant's log loader at a speed estimated to be between 65 and 85 miles per hour, leaving no skid marks. An analysis of the decedent's blood established the alcohol content at .17 percent. The designated speed was 55 miles per hour.

In the original complaint, plaintiff alleged that defendant was negligent '(i) n operating said vehicle (log loader) on a public highway when there was available for defendant's use a private road immediately adjacent to said public highway; * * *.' This allegation referred primarily to a private dirt road maintained by defendant along the east side of Highway 74. On defendant's pretrial motion, the presiding court struck this allegation from the complaint and the trial court refused to reinstate the allegation at trial or permit plaintiff to adequately introduce proof on the subject of the alternate route. These rulings form the basis of plaintiff's first two assignments of error.

The decision to strike certain allegations from a pleading rests within the sound discretion of the trial court, and this court will not reverse that decision unless an abuse of discretion is shown. McGinnis et al. v. Keen, 189 Or. 445, 449, 221 P.2d 907, 909 (1950). Plaintiff failed to plead facts sufficient to show that defendant owed plaintiff's decedent any duty to use an alternate route. The bare statement that defendant was negligent in failing to use another road will not suffice. This court stated in Klerk v. Tektronix, Inc., 244 Or. 10, 13, 415 P.2d 510, 512 (1966):

'If is well established that actionable negligence arises only from the breach of a duty owed by one person to another, and that to state cause of action for negligence the complaint must state the duty imposed or facts from which the law will imply a duty. * * *'

The trial court was clearly within its discretion in striking this allegation and refusing to reinstate it at trial. Since the subject of alternate routes was outside the scope of the pleadings, evidence concerning that subject was properly excluded. ORS 41.230. See Gabel v. Armstrong, 88 Or. 84, 171 P. 190 (1918), where this court held that evidence offered to prove allegations which had been excluded from the case was properly refused.

The plaintiff also argues that '(f)urther evidence regarding alternate routes was kept from the jury and plaintiff was admonished not to argue the failure to use alternative routes even though evidence came in during trial, without objections, as to alternative routes' and that 'the use of the highway by defendant's vehicle when there were alternative routes available and known to defendant and there was no emergency requiring defendant to use the public highway then defendant would be negligent when it took the highway route in preference to the alternate routes * * *.'

'Consideration must also be given to any alternative course open to the actor. Whether it is reasonable to travel a dangerous road may depend upon the disadvantages of another route; and while mere inconvenience or cost may not in themselves be sufficient to justify proceeding in the face of great danger, they may justify taking other risks which are not too extreme * * *.

'The alternative dangers to the actor himself and to others must be thrown into the scale, and a balance struck in which all of these elements are weighed.' W. Prosser, Law of Torts 148--49, § 31 (4th ed. 1971).

Plaintiff made an offer of proof but it consisted solely of a number of other automobiles being detoured around the scene of the accident on the alternate route. This would prove that automobiles could use the alternate route, but there is nothing in the proof to show that such route was available to a vehicle with the weight of the log loader or that he proceeded on the highway 'in the face of great danger.'

Plaintiff makes no contention in his pleadings that defendant's log loader was unlawfully on the highway. Plaintiff seems to argue in light of the loader's size and slow speed and the type of equipment or lights on the vehicle that it should 'be considered negligence to place this vehicle on the highway at 11:20 p.m. when no emergency existed and there was no good reason for the vehicle to be on the highway at that time of night or at any other time.' If it had been daylight, rather than darkness, it is difficult to understand how the operation of the loader on Highway 74, rather than on some alternate route, could constitute negligence. Plaintiff's decedent had a clear view on straight roadway for one quarter of a mile. With Oregon's economy consisting primarily of lumber and agriculture, we accept logging trucks, heavy equipment, and tractor-trailers as part of highway traffic, and the reasonable, prudent man accepts and guards against it although he may not find it to his liking. It is part of the uniform standard of behavior by the hypothetical reasonable, prudent man. If one was to drive a pickup truck, overloaded with firewood, at a slow speed on the highway rather than on an available alternate route, would such an act support an allegation of negligence grounded on failure to use an alternate route? We think not. If no alternate route was available we would consider the overloading, control, and speed of the vehicle as elements of negligence to be submitted to the jury. In the present case the plaintiff alleged that the defendant was negligent:

'1. In operating said log loader at night with two white lights illuminated facing the rear * * *.

'2. In operating said vehicle during the hours of darkness without displaying red illuminated lights on the rear of said vehicle.

'3. In operating said vehicle on a public highway at an unreasonably slow speed without warning plaintiff's decedent of said vehicle's slow speed.

'4. In operating said vehicle on a public highway when in the exercise of reasonable care, defendant knew or should have known said vehicle was in an unsafe condition so as to endanger other persons using said highway, * * *.

'* * *.';

and in failing to maintain proper lookout and control. The court submitted these allegations of negligence with all the evidence to the jury for its consideration.

We find the court did not err as contended by plaintiff's first two assignments of error.

During trial, plaintiff elicited testimony from Felix Schwarzin, the driver of the log loader, which indicated that the vehicle had no rearview mirror and that defendant had never instructed Schwarzin on how to turn off the loader's rear headlights. After both parties had rested, plaintiff moved to amend its complaint to add these facts as specifications of negligence. The court denied the motions and the rulings are assigned as error by plaintiff.

A trial court is authorized by ORS 16.390 to permit parties to amend their pleadings to conform to the facts proved at trial, but the decision to permit such amendments is within the court's sound discretion. This court will not disturb the trial court's decision unless it clearly appears that the discretion was abused to the prejudice of one of the parties. Sackett v. Mitchell, 96 Or.Adv.Sh. 649, 505 P.2d 1136 (1973); Morrill v. Rountree, 242 Or. 320, 408 P.2d 932 (1966).

ORS 483.450 requires motorists to equip their vehicles with a rearview mirror. Defendant's failure to comply with this statute raised a rebuttable presumption of negligence. See Freund v. DeBuse, 96 Or.Adv.Sh. 777, 506 P.2d 491 (1973). However, proof of...