Lokey v. Pine Mountain Lumber Co.

• Decision Date: 09 July 1962
• Citation: 205 Cal.App.2d 522,23 Cal.Rptr. 293
• Parties: Dean LOKEY, Plaintiff and Respondent, v. PINE MOUNTAIN LUMBER COMPANY, Defendant and Appellant. Civ. 10304.
• Court: California Court of Appeals Court of Appeals

Page 293

23 Cal.Rptr. 293

205 Cal.App.2d 522

Dean LOKEY, Plaintiff and Respondent, v. PINE MOUNTAIN LUMBER COMPANY, Defendant and Appellant.

Civ. 10304.

District Court of Appeal, Third District, California.

July 9, 1962.

Rehearing Denied Aug. 3, 1962.

Hearing Denied Sept. 5, 1962.

Derby, Cook, Quinby & Tweedt, San Francisco, Tebbe & Correia, Yreka, for appellant.

Hurley & Bigler, Yreka, for respondent.

SCHOTTKY, Justice.

Dean Lokey commenced an action against Pine Mountain Lumber Company to recover damages for injuries sustained when he was struck by a log which fell from a truck. The jury rendered a verdict in favor of plaintiff. Defendant's motion for a new trial was denied and this appeal is from the judgment entered on the verdict.

In arguing for a reversal of the judgment appellant urges a number of contentions, but before discussing these we shall give a brief summary of the evidence as shown by the record, viewing it, as we must, in the light favorable to the respondent.

Dean Lokey was a logging truck driver employed by Eric Garoutte. On December 4, 1959, Lokey drove a truck load of logs from the vicinity of Yreka Mountain to the mill of the Pine Mountain Lumber Company. Garoutte and Luther Nichols loaded the logs on the truck. After most of the logs were placed inside the bunks of the truck, two gut wrappers were placed around the load. Then two short peaker logs were loaded end to end on top of the load. Two wrappers were placed over the front peaker log and fastened to the front bunk. The rear peaker log was tied down in the same way. Lokey then drove to the Pine Mountain mill. His load was scaled and he drove to the 'cold deck' where the logs were to be unloaded. At a signal from the operator of the crane which was used to unload the logs he stopped his truck and removed the two top wrappers from the front log. He then went to the front of the truck and coiled the wrappers. Mr. Besoain, who was the operator of the crane, started to remove the peaker log. He grabbed it several times and picked it up, but it slipped out of the tongs and fell back on the load Finally, he managed to get the grapple to hold one end of the peaker log and rolled it off of the left side of the truck--the side away from the crane. It landed about three feet from the truck and parallel to it. Lokey then proceeded to take off the gut wrappers. He looked at the load which seemed to be proper. As he unfastened the binder on the gut wrapper there was no indication that the load was loose. After unfastening the wrapper he removed the binder and threw the gut chain under the truck where it caught in the reach or tongue of the trailer. He looked up at the load and went under the truck to throw the wrapper off of the reach, and after doing so he withdrew from the underside of the truck. His exit was on the same side he had entered. As he came out he looked up and saw that a log was commencing to roll and he immediately went back under the truck. The rolling log hit the peaker log which was lying parallel to the left side of the truck and then glanced off and struck Lokey. As a result he incurred severe injuries. No one knew what caused the log to fall. The trial judge upon the hearing of appellant's motion for a new trial stated that the most probable of any theory suggested was 'That the log fell because the defendant's employee battered the load with the bigger log that he tried initially to remove.'

Appellant's first contention is that Lokey was guilty of contributory negligence as a matter of law.

Appellant quotes and predicates its argument upon subdivision (f) of section 5326, title 8, of the California Administrative Code, dealing with logging and sawmill safety orders. We quote from the section as follows:

'Log Dumps, Ponds, and Other Unloading Facilities.

'(a) Log dumps, ponds, and other unloading facilities, when used after dark, shall have illumination which is adequate to secure the safety of the employees.

'(b) Jill-poking of cars shall be done only at permanent locations, properly equipped.

'(c) The top of the brow log, where used, shall not be more than nine inches (9"') below the truck or car bunk level, nor shall it be a greater distance than fourteen inches (14"') from the side of the truck or car when it is in position for dumping logs.

'(1) All employees are prohibited from going between a brow log and the load of logs at any time.

'(2) All employees shall remain in the clear until moving equipment has come to a complete stop.

'(d) Where logs are unloaded into rollways, sufficient space shall be provided between the top of the skids and the ground or deck to accommodate the body of a man.

'(e) All log dumps shall be kept reasonably free of bark and other debris.

'(f) When dumping, transferring, or unloading logs from trucks, a positive safeguard shall be used on the side from which the binders and/or chocks are loosened, to prevent any logs from falling while they are being released.

* * *

* * *

'(k) Engineer or operator shall determine that all employees are in the clear, and shall have received a signal from the dump man before proceeding to unload the logs.'

Appellant contends that Lokey by unfastening the binders on his safety log without the use of any safety device whatever violated subdivision (f) of the safety order. Appellant concedes that it had the obligation to furnish the safeguard. It is clear that it is improper to loosen binders without the use of a positive safeguard. Would the fact that Lokey did so mean that he would be precluded from recovering?

Appellant relies on a statement in McCaughan v. Hansen Pacific Lumber Co., 176 Cal.App.2d 827, at page 832, 1 Cal.Rptr. 796, for the proposition that Lokey was bound to obey subdivision (f) of section 5326 and that his failure to do so constituted contributory negligence as a matter of law. This statement reads:

'Hansen Pacific contends that the safety order instructions we have quoted were erroneous in that they make it appear that the safety orders applied only to Hansen Pacific and it employees. While we think it is clear that McCaughan was governed by the safety orders which appear to have been intended for the benefit of all those in the logging industry engaged in the operation of unloading logs from trucks, we do not think that Hansen Pacific can properly complain, as it does, that undue emphasis was placed upon the duties of Hansen Pacific under the safety orders. It was the primary duty of Hansen Pacific to furnish requisite safety appliances for use in unloading, while McCaughan's duties were negative in that respect. He, of course, could not furnish the appliances nor was he required to do so. At most he was required by the safety orders, so far as applicable to him, to take off the binders under safety conditions furnished by the requisite equipment required of Hansen Pacific. Furthermore, no specific instruction was requested especially directing the jury's attention to the duties of McCaughan with relation to safety orders. Hansen Pacific claims that it gave the court opportunity to correctly instruct the jury in this respect by requesting BAJI No. 149 which would have told the jury that if a party to the action violated the safety orders a presumption arose that in so doing he was acting negligently; that the presumption was not conclusive and could be overcome by other evidence showing that under all the circumstances the conduct in question was excusable. This instruction would not have dispelled any impression the jury might have gotten that Hansen Pacific alone was bound by the safety orders, for it appears directed more to a permissible rebuttal defense by Hansen Pacific if the jury concluded it had violated the safety orders. Furthermore, the instruction proceeded to state that a violation of a safety ordinance was excusable so as to overcome the presumption if the evidence would support a finding that the violation resulted from causes beyond the control of the person charged with the violation. This part of the instruction was not correct. Alarid v. Vanier, 50 Cal.2d 617, 624, 327 P.2d 897. The court was under no duty to correct it. Shaw v. Pac. Greyhound Lines, 50 Cal.2d 153, 158, 323 P.2d 391.'

It is clear that any statement as to the duties of an employee was unnecessary to the decision and obiter dictum. The opinion does hold that it is the duty of the employer (and in this case as shall be pointed out later appellant was an employer) to furnish the safety devices. But the opinion does not hold that the failure of an employee to obey subdivision (f) is negligence. Moreover, it is to be noted that the McCaughan opinion states that 'McCaughan's duties were negative' with respect to the required safety appliances, whereas 'It was the primary duty of Hansen Pacific to furnish' them.

We then must decide if subdivision (f) was directed to Lokey. Section 5326 prescribes the rules applicable for log unloading facilities. Certain of these are specifically directed toward the employee. For example, all employees are prohibited from going between a brow log and a load of logs, and all employees are instructed to remain in the clear of moving equipment. The majority of the rules are directed toward the person responsible for unloading. For example, requirements that unloading facilities have adequate lighting and that log dumps be kept reasonably free from debris are directed toward the employer. Certainly, the person in charge of the facilities would be responsible for obedience to these standards. We believe that subdivision (f) falls in this latter category. First, it is not specifically directed toward the employee. Secondly, the person in charge of the unloading facilities unloads the logs. He is in charge. He can control the entire operation. It would only be reasonable to assume, this being so that subdivision (f) is directed toward him, not the truck driver who at this point is under his...