McCaughan v. Hansen Pac. Lumber Co.

• Decision Date: 31 December 1959
• Citation: 1 Cal.Rptr. 796,176 Cal.App.2d 827
• Court: California Court of Appeals Court of Appeals
• Parties: , 86 A.L.R.2d 1390 Jean McCAUGHAN, individually and as guardian ad litem of Sterling McCaughan and Timothy McCaughan, Minors, Plaintiff and Respondent, v. HANSEN PACIFIC LUMBER CO., a corporation, Paul Campbell and William Bateman, Defendants, Hansen Pacific Lumber Co., a corporation, Appellant. Civ. 9641.

Page 796

1 Cal.Rptr. 796

176 Cal.App.2d 827, 86 A.L.R.2d 1390

Jean McCAUGHAN, individually and as guardian ad litem of Sterling McCaughan and Timothy McCaughan, Minors, Plaintiff and Respondent, v. HANSEN PACIFIC LUMBER CO., a corporation, Paul Campbell and William Bateman, Defendants Hansen Pacific Lumber Co., a corporation, Appellant.

Civ. 9641.

District Court of Appeal, Third District, California.

Dec. 31, 1959.

Hill & Hill, Eureka, for appellant.

Hilger & Thomas, Eureka, for respondent.

VAN DYKE, Presiding Justice.

This is an appeal from judgment in an action for wrongful death brought by the heirs of the deceased. The action was based upon alleged negligence of defendant-appellant Hansen Pacific Lumber Company and two of its employees while logs were being unloaded from the decedent's truck. Trial by jury resulted in a judgment against the lumber company and it appeals.

The decedent, Irving McCaughan, was an independent logging truck operator who was killed when a log fell from his truck. The truck had been loaded by the logger for whom McCaughan was hauling at a log 'landing' in the woods. The logs were tied on with cables extending around the load, called wrappers or binders, the purpose of which was to keep the logs from shifting or falling off while being hauled. It was the work of the truck driver to put the binders on, to operate the truck and to take the binders off. McCaughan was an experienced log truck driver. Neither McCaughan nor the logger for whom he was hauling was an employee of Hansen Pacific, which operates a lumber mill at Fortuna. Two Hansen Pacific employees were joined in the action as defendants. One of them, Bateman, was a shovel operator whose work was to unload logs from logging trucks bringing logs to the mill. The other, Campbell, was employed by Hansen Pacific as a dump man to operate dumping machinery when logs were dumped rather than removed directly from the load by means of the shovel. Campbell sometimes assisted log truck drivers in taking binders off the loads.

Hansen Pacific used an area near the mill in which logs were sometimes dumped into a pond, and sometimes were taken direct from the trucks and stacked in what is referred to as a 'cold deck'. When logs were to be dumped into the pond the method used was to drive the logging truck parallel to a stationary 'brow' log at the edge of the pond. Cables were attached to the brow log, passed under the load at points some distance apart, kept separated by a spreader bar, then attached to a hook which could be hoisted by power machinery so as to tighten the cables against the side of the load away from the pond. When this had been done the binders would be removed, the trucker working from the land side. The tightened cables prevented the logs from falling on him while the binders were being removed. When the binders were off, the cables were further tightened, the logs lifted and dumped over the brow log into the pond. A second method was used when the logs were to be stacked in a 'cold deck'. For this operation Hansen Pacific had a large power shovel on crawler tracks. It weighed about 80 tons. It had a heel boom and tongs for lifting logs. The tongs were approximately 6 feet high and were perpendicular to the 'dipper stick' which could be extended and retracted. In unloading logs from trucks the procedure used was to have the truck back up underneath the shovel. The dipper stick would be extended and the tongs would be placed against the side of the load, the object being to prevent logs from rolling when the driver released the binders. After the binders were removed the logs were picked up from the load, one log at a time, and placed in the stack alongside the shovel and the truck.

McCaughan's truck had been loaded with twelve logs of relatively small size. They were placed five in the bottom tier, four in the middle tier, and three in the top tier. When he arrived at the scale shack, McCaughan assisted the scaler in scaling the logs. Following this he drove his truck to the log-stacking area. He drove past the shovel and up to a point alongside the stack. He was accompanied by Campbell. Bateman brought the shovel alongside the stack at a point where he testified he intended to place he logs. The truck was about forty feet ahead of him. He testified that he expected the driver to back the truck under the shovel for the unloading operation and that he would then, if requested, have placed the tongs beside the load before the binders were loosened. McCaughan, however, did not back his truck. Campbell, who was with him, testified that McCaughan stopped the truck about where he, Campbell, thought the logs were to be put; that McCaughan then if the truck was in about the right spot and he told him he thought so. The two men then went back along the truck to take the binders off. It appears that the shovel operator usually selected the spot where he wanted to stack the logs from the truck, but that he had no control over where the driver took the binders off. Bateman sat in the cab of the shovel. He gave no signal or direction to McCaughan to back up to the shovel. McCaughan and Campbell proceeded to take off the binders. One of the logs fell. Campbell escaped, but McCaughan did not and was killed when the log struck him.

It was the theory of respondent that Hansen Pacific was actionably negligent in failing to maintain on its premises a safe place for drivers to work during the unloading operation and particularly when removing load binders. It is recognized in the industry that this part of the unloading operation is fraught with danger; that logs will sometimes roll off when the binders are removed. On this subject safety orders have been passed by the State Division of Industrial Safety and the court instructed the jury concerning them as follows:

'You are instructed that the Safety Orders having the effect of law and in effect at the time of the accident provided as follows: 'When dumping logs, the unloading line shall be attached and tightened or other positive safeguard securely placed before the bunk or binder chains are released.'

'If you find that the defendants at the time of the accident were in violation of the provision of law just read to you, and that that violation proximately resulted in the injury and death of Iriving McCaughan, such violation constitutes negligence as a matter of law.

'You are instructed that the safety orders having the effect of law and in effect at the time of the accident provided further as follows: 'Crotched lines, spreader bars, and other similar devices shall be used in the unloading of logs, to prevent the logs from swinging.'

'If you find that the defendants at the time of the accident were in violation of the provision of law just read to you, and that that violation proximately resulted in the injury and death of Irving McCaughan, such violation constitutes negligence as a matter of law.

'The definition of the word 'shall' in the Safety Order just read to you, means that compliance with the said order is mandatory.'

That when dumping logs into the pond, Hansen Pacific provided safety appliances adequate to meet the demands of the safety orders, was not a matter in issue. But when it decided, through its employees, to deck the logs, the question whether it provided adequate facilities for that operation was in issue. Certainly, it had no appliances which literally complied with the requirement that 'when dumping logs, the unloading line shall be attached and tightened * * * before the bunk or binder chains are released.' It does not so claim. It does claim however that the shovel, equipped with tongs which could be placed against the side of the load while the driver was taking off the bindings, constituted 'other positive safeguards' and so did substantially comply with the safety order. It is apparent that tongs so placed would normally come in contact only with one point on the bottom log of the load nearest the side from which the binders were to be loosened. Such a device might permit one end of a log to fall to the ground if the tongs were not at least approximately at the center point of gravity of the log against which they were placed, and a log rolling from the top of the load might be but little impeded when it struck the tongs. Under the evidence, it was a question of fact for the jury as to whether the safeguards provided in the stacking area constituted 'other positive safeguards securely placed before the bunk or binder chains are released' or devices similar to 'crotched lines, spreader bars * * * to prevent the logs from swinging'. The quoted instruction left it for the jury to determine whether or not Hansen Pacific was in violation of the safety orders and this was emphasized when, during its deliberations the jury, on returning to court, was admonished as follows:

'Well, it's a question of fact for you to determine. You heard testimony here as to methods of unloading logs. You had a brow log described at a pond, you had a method described whereby they used the shovel and you had crotched lines described to you. You heard what Hansen-Pacific had available there. You're to determine as a question of fact whether or not the facilities they had available does comply with these safety regulations. It isn't for me to try to guide you one way or the other in making that determination.'

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 its 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...