Emerick v. Mayr
| Decision Date | 26 July 1951 |
| Docket Number | No. 31663,31663 |
| Court | Washington Supreme Court |
| Parties | EMERICK, v. MAYR et al. |
Theodore B. Bruener, A. D. Gillies, Aberdeen, for appellant.
Lester T. Parker, Aberdeen, for respondents.
This is an appeal from a judgment dismissing appellant's action for damages to his truck and trailer.
At the time of the accident Milton N. Emerick, Jr. owned and operated a logging truck and was engaged in hauling logs for Mayr Brothers. He had been operating for four months under a state permit which had been issued to him upon his representation that he was an experienced log hauler. Prior to that time he had spent four years and nine months in the army.
April 15, 1949 he had made one trip and was back for a second load. A fir log was picked out which was 32 feet long, 63 inches in diameter and had a footage of 5,970 feet. This was larger than the logs ordinarily shipped. It is customary in that area to use a strap of cable to lift logs of this size. However, on that day the Mayrs had no strap of the proper size available, so they wrapped the loading line two complete turns around the log and shackled the loading line. The low was lifted into the air by the loading machine, and the second loader ordered Emerick to back up, which he did. At that time the line broke, causing the log to fall on the truck and trailer, which were damaged in the amount of $2,049.42. There was some testimony concerning loss of time, but we are of the opinion that this element of damage was not proved with sufficient certainty.
The specific allegations of negligence were that the defendants:
(1) Failed and neglected to use proper equipment for the loading of a log the size and weight of that then attempted to be loaded;
(2) Failed to use reasonable care and proper methods in loading the log;
(3) Were negligent and careless in permitting the log to break away.
At the time of trial plaintiff was permitted to amend his complaint by alleging further that the defendants were negligent in wrapping the loading line around the log and using it as a choker line.
All of these allegations of negligence were denied by defendants, who alleged affirmatively that the injury was not caused by their negligence, but was caused solely by accident, and that this was one of the risks assumed by the plaintiff.
The trial court found that there was no evidence of negligence on the part of defendants in loading the log, or in the method used in loading; that any presumption arising by the application of the doctrine of res ipsa loquitur had been successfully rebutted by defendants; that if there was any negligence in the method employed in loading the log, the plaintiff assumed the risk.
The doctrine of res ipsa loquitur arises where the thing which caused the injury complained of is shown to be under the exclusive control and management of the defendant or his servants, and the accident is such as in the ordinary course of events does not happen if those who have the management or control of the agency use proper care. The injurious occurrence of itself, in the absence of explanation by the defendant, affords reasonable evidence, or a permissible inference, that such occurrence arose from want of care. Morner v. Union Pac. R. Co., 31 Wash.2d 282, 196 P.2d 744; Shay v. Parkhurst, Wash., 229 P.2d 510. However, the doctrine is a rule of necessity to be invoked only where direct evidence of negligence is absent and unavailable.
Here the appellant alleged certain specific acts of negligence on the part of respondents and introduced evidence in support thereof. The question of respondents' negligence and the direct cause of the accident were squarely presented to the trier of fact, and there was no occasion to resort to the doctrine of res ipsa loquitur.
Under the doctrine of assumed or incurred risk, it is the rule that one who voluntarily exposes himself or his property to a known and appreciated danger due to the negligence of another may not recover for injuries sustained thereby. 65 C.J.S., Negligence, § 174, page 848; Walsh v. West Coast Coal Mines, 31 Wash.2d 396, 197 P.2d 233. In order to invoke the doctrine it is essential that the plaintiff shall have exposed himself or his property voluntarily. The doctrine can apply only where a person may reasonably elect whether or not he shall expose himself to a particular danger. Also, it is essential that the risk of danger shall have been known to, and appreciated by, the plaintiff, or that it shall have been so obvious that he must be presumed to have comprehended it. 65 C.J.S., Negligence, § 174, page 853; Gila Valley, G. & N. R. Co. v. Hall, 232 U.S. 94, 34 S.Ct. 229, 58 L.Ed. 521; Blanco v. Sun Ranches, Inc., Wash., 234 P.2d 499.
Appella...
To continue reading
Request your trial
-
Miller v. Kennedy
...occurred unless the defendant had been negligent, and (c) the accident was not caused by any action of the plaintiff. Emerick v. Mayr, 39 Wash.2d 23, 234 P.2d 1079 (1951); Ewer v. Goodyear Tire & Rubber Co., 4 Wash.App. 152, 480 P.2d 260 his weakened condition and extensive bleeding, Mr. Mi......
-
Dempsey v. Alamo Hotels, Inc.
...327; Pacific Portland Cement Co. v. Bellamy, 187 F.2d 701 (9th Cir. 1951); Hall v. Ziegler, 361 Pa. 228, 64 A.2d 767; Emerick v. Mayr, 39 Wash.2d 23, 234 P.2d 1079; Mathias v. Denver Union Term. Ry., 137 Colo. 224, 323 P.2d 624; Restatement of the Law of Torts 2d, § 496A and Finding no erro......
-
Detrick v. Garretson Packing Co.
...including the meaning that defendant's conduct has left plaintiff a reasonable election or alternative. See Emerick v. Mayr, 39 Wash.2d 23, 25, 234 P.2d 1079 (1951), and (3) was the exposure unreasonable, that is, was it such that a reasonable person in plaintiff's position would not expose......
-
Siegler v. Kuhlman
...If it does, the doctrine should not be submitted to the jury. Engen v. Arnold, 61 Wash.2d 641, 379 P.2d 990 (1963); Emerick v. Mayr, 39 Wash.2d 23, 234 P.2d 1079 (1951). It is not disputed that the springs broke, but the evidence was in conflict and left an uncertainty as to why this happen......