Miles v. St. Regis Paper Co., 39487

Decision Date09 April 1970
Docket NumberNo. 39487,39487
Citation467 P.2d 307,77 Wn.2d 828
PartiesDorothy MILES, Individually, and as Administratrix of the Estate of Claud Miles, Sr., Deceased, Respondent, v. ST. REGIS PAPER COMPANY, Inc., a New York Corporation, Defendant, Northern Pacific Railroad Company, Inc., a Wisconsin Corporation, and W. C. Casey and Jane Doe Casey, husband and wife, and Walter M. Paine, Jr., and Jane Doe Paine, husband and wife, and Walter M. Campbell and Jane Doe Campbell, husband and wife, and J. K. Harper and Jane Doe Harper, husband and wife, and John Doe Deitch and Jane Doe Deitch, husband and wife, Appellants.
CourtWashington Supreme Court

Roger J. Crosby, Seattle, for appellants.

Griffin, Boyle & Enslow, F. G. Enslow, Tacoma, for respondent.

FINLEY, Associate Justice.

This lawsuit was brought by Dorothy Miles individually as the surviving wife and as the administratrix of the estate of Claud Miles, Sr., the deceased. Negligence was alleged on the part of the St. Regis Paper Company, Inc., the Northern Pacific Railroad Company, Inc., and certain employees of both entities.

A motion by St. Regis challenging the sufficiency of the evidence at the end of the plaintiff's case was granted and St. Regis is not involved in this appeal. Similar motions by Northern Pacific Railroad at the end of plaintiff's case and at the end of all of the evidence were denied. The jury returned a verdict of $35,000 for the plaintiff. A motion for a judgment n.o.v. or for a new trial was denied and this appeal followed.

Claud Miles, Sr., was crushed and instantly killed by one of three logs which rolled from the top of a flatcar loaded with logs. The flatcar and its load of logs were in a logging train in the process of being unloaded at the premises of the 'D' Street Rafting Company, Inc., of Tacoma, Washington.

The logging train was loaded with logs by employees of St. Regis at Lake Kapowsin. Much testimony was introduced tending to show that due care was exercised by St. Regis employees in loading the logs on the flatcars as Lake Kapowsin; furthermore, that subsequent repetitive inspections of the log loads were made both by St. Regis and Northern Pacific to insure safe transportation and safe unloading. After arrival of the log train at the railroad yards in Tacoma, a Northern Pacific switch engine was coupled to it and moved the train from the railroad yards to the premises of the 'D' Street Rafting Company. There is a conflict in the evidence as to what happened there. The employees of the railroad testified that the train did not move after the last car in the string was positioned under the crane of the 'D' Street Rafting Company in preparation for unloading. They stated that no logs had been unloaded prior to the accident. But, in direct conflict there is the testimony of the operator of the crane at the time of the accident, a Mr. Keblbek, who was an employee of 'D' Street Rafting Company. He testified that some logs had been unloaded and that the train was moved just 15 or 20 seconds prior to the time he heard the locomotive whistle blow, indicating an accident had occurred.

The testimony of witnesses for the railroad indicated that movement of the train in positioning the cars for unloading was under the control of members of the unloading crew of the 'D' Street Rafting Company who relayed signals to the train crew. In conflict, other testimony indicated that movement of the train was subject to control and authority of the train crew, principally the engineer or fireman on duty in the locomotive engine. As will be seen later, this question of control has become the primary issue in this appeal.

Two cables with fasteners or 'binders' were placed around each end of each load of logs on the railroad flatcars. Apparently the cables and binders were used at the behest of the railroad as a safety measure and had the capacity to provide some stability for the log loads. The cables were not of sufficient strength to hold if an entire log load shifted significantly. They would resist and contain some shifting as to a load or as to one log, depending upon the size and weight of logs and the shifting involved. Normally the cables would hang somewhat loosely at the bottom of each log load. One method of ascertaining stability and safety of the log loads at the time of unloading was to inspect and determine whether each of the cables and the binders were intact and whether the cables were hanging somewhat loosely beneath each log load. On the day of the accident, Mr. Miles, the deceased, was a member of the unloading crew of the 'D' Street Rafting Company. He was assigned the duty of releasing the binders encircling the loads of logs on the flatcars. After releasing the binders, it was part of his work to return to the crane and to assist in handling two slings which were attached to the crane and utilized in unloading logs. These were passed under and around the loads of logs, then attached to the crane. When each end was secured, the crane was then used to pull the slings tight, and then to lift and unload the logs. At the time of the accident Mr. Miles had not returned to the crane to work with the slings. After the accident it was ascertained that except for the flatcar immediately in front of the switch engine, the binders had been released. One of the binders on the fatal load of logs had been released by hand, ostensibly by Mr. Miles. The other binder had not been released but the cable was broken.

The engineer, Mr. Casey, had changed places in the cab of the switch engine with the fireman and was eating his lunch, sitting with his back to the log load on the flatcar immediately in front of the switch engine. He did not see the three logs roll off the top of the load and did not see Mr. Miles until after the accident when he looked and saw him under one of the logs. The fireman seated by the throttle on the opposite side of the engine cab could not see Mr. Miles. He did see the top or 'peaker' log and the other two logs begin to roll from the railroad flatcar. The foreman of the railroad switching crew, Mr. Harper, was on a platform adjacent to the crane, several car lengths distance from the switch engine, and on the side of the train opposite from where Mr. Miles was killed. From his location at the time of the accident, Mr. Harper could not see Mr. Miles. Two other members of the railroad switching crew had temporarily left the log train and had gone to have coffee after the train was initially positioned on the premises of the 'D' Street Rafting Company. Obviously they could not see and evaluate the situation of Mr. Miles just prior to the accident. Mr. Keblbek testified that from his position operating the crane he could not see Mr. Miles alongside the fatal load of logs.

There was very positive testimony on the part of members of the railroad switching crew that the train had not been handled roughly in its movement from the railroad yard to the 'D' Street Rafting Company premises; furthermore, that two of these employees had walked the train observing the condition of the binders and carefully inspecting each of the log loads on the several flatcars of the train. There was positive testimony that if an inspection of the binders and the logs showed a possibility that any load of logs was unstable, the suspect loads would be tagged with a white card and the binders and cables would not be released by hand. Such loads would be moved to the crane site and the slings placed around the logs as a safety precaution before the binders would be released.

The appellant assigns error: (1) to the denial of motions attacking the sufficiency of the evidence, (2) to the failure of the trial court to give several jury instructions offered by the appellant, and (3) to the giving of an instruction submitting the doctrine res ipsa loquitur to the jury. We are convinced there was sufficient evidence that the trial court did not err in denying appellant's motions in this regard. We agree with the trial court that it was not error to refuse to give the instructions offered by appellant. The essence of these was adequately covered in other instructions given to the jury. This appeal focuses essentially on whether it was error for the trial court to instruct the jury on the doctrine of res ipsa loquitur.

A common statement of the doctrine of res ipsa loquitur appears in Kind v. Seattle, 50 Wash.2d 485, 489, 312 P.2d 811, 814 (1957):

Where a plaintiff's evidence establishes that an instrumentality under the exclusive control of the defendants caused an injurious occurrence, which ordinarily does not happen if those in control of the instrumentality use ordinary care, there is an inference, permissible from the occurrence itself, that it was caused by the defendant's want of care.

The three prerequisites to application of the doctrine are: (1) an event which ordinarily does not occur unless someone is negligent; (2) the agency or instrumentality causing the event must be within the exclusive control of the defendant; and (3) there must be no voluntary action or contribution to the event on the part of the plaintiff. Douglas v. Bussabarger, 73 Wash.2d 476, 438 P.2d 829 (1968); Emerick v. Mayr, 39 Wash.2d 23, 234 P.2d 1079 (1951); W. Prosser, Torts 218 (2d ed. 1955). It is a well known fact that great quantities of logs are loaded, transported, and unloaded every day throughout the state by truck and rail facilities. It is also well known that in most substantial part logs are loaded, transported, and unloaded properly, safely, and without accidents. So, despite the occurrence of some accidents, as in the instant case, we are convinced it can be said that ...

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5 cases
  • Zukowsky v. Brown
    • United States
    • Washington Supreme Court
    • September 2, 1971
    ...was negligent, but also preclude the possibility that defendant can establish a defense based on plaintiff's conduct. See Miles v. St. Regis Paper Co., Supra. Thus, it is incorrect to speak of evidence of plaintiff's conduct as proof of lack of defendant's negligence. If, at the close of pl......
  • Jewell v. Seidenberg
    • United States
    • New Mexico Supreme Court
    • November 16, 1970
    ...1 Wash.App. 1014, 466 P.2d 521 (1970), and the implication contained in the only footnote in the dissent in Miles v. St. Regis Paper Company, 467 P.2d 307 (Wash.1970). Florida has held that their Standard Jury Instructions are not mandatory but are entitled to great respect and should be re......
  • Siegler v. Kuhlman
    • United States
    • Washington Court of Appeals
    • August 17, 1970
    ...that the doctor was in fact negligent. The most recent res ipsa loquitur case decided by our Supreme Court is Miles v. St. Regis Paper Co., 77 Wash.Dec.2d 840, 467 P.2d 307 (1970). Claude Miles was crushed to death by one of three logs which rolled from the top of a railroad flat car. The c......
  • Siegler v. Kuhlman, 41696
    • United States
    • Washington Supreme Court
    • November 15, 1972 our statement on the subject: ZeBarth v. Swedish Hosp. Medical Center, 81 Wash.2d 12, 499 P.2d 1 (1972); Miles v. St. Regis Paper Co., 77 Wash.2d 828, 467 P.2d 307 (1970); Douglas v. Bussabarger, 73 Wash.2d 476, 438 P.2d 829 (1968); Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973 (196......
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