Oregon Transfer Co. v. Tyee Construction Company

• Decision Date: 21 November 1960
• Docket Number: Civ. No. 60-114.
• Citation: 188 F. Supp. 647
• Parties: OREGON TRANSFER CO., a corporation, Plaintiff, v. TYEE CONSTRUCTION COMPANY, a corporation, Defendant.
• Court: U.S. District Court — District of Oregon

188 F. Supp. 647

OREGON TRANSFER CO., a corporation, Plaintiff, v. TYEE CONSTRUCTION COMPANY, a corporation, Defendant.

Civ. No. 60-114.

United States District Court D. Oregon.

November 21, 1960.

Black, Kendall & Tremaine; David J. Krieger, Portland, Or., for plaintiff.

Mautz, Souther, Spaulding, Kinsey & Williamson, Portland, Or., for defendants.

C. E. Luckey, U. S. Atty., David Robinson, Jr., Asst. U. S. Atty., Portland, Or., for third party defendant.

KILKENNY, District Judge.

Action by plaintiff against the defendant to recover the value of certain services performed and materials furnished by plaintiff to defendant. Defendant counterclaims for $7,250, the amount it expended for the replacement of a bridge, and the further sum of $1,645.81, for additional expenses.

On March 27, 1959, defendants entered into a written contract with the United States of America for the construction of a certain electric power transmission line in Lincoln County, Oregon. On April 20, 1959, plaintiff and defendant entered into a contract wherein plaintiff agreed to perform a portion of the work which defendant had agreed to do under its contract with the United States. The work to be done by plaintiff included the loading, transportation and delivery at tower sites of certain footing and tower steel and conductors required by defendant in the performance of its main contract. The services rendered and materials furnished by plaintiff to defendant have an agreed value of $10,495. While plaintiff was transporting a heavy load of such materials for defendant under such contract, a wooden bridge, over which plaintiff's loaded truck was passing, collapsed and was destroyed. The truck, unloaded, had a gross weight of 15,060 pounds and the materials loaded on said truck at said time weighed 28,706 pounds. The maximum gross weight of the load and the vehicle which was permissible under the certificate issued by the Public Utilities Commissioner of the state of Oregon was 42,000 pounds. The United States had an easement to use the bridge which collapsed. Said bridge was the property of third persons who are not parties to this action. The plaintiff and defendant had a right to the use of said bridge under said contracts.

Subsequent to the collapse of said bridge, the United States demanded that defendant replace the bridge so destroyed. Thereupon, the defendant demanded that plaintiff replace said bridge. Plaintiff refused such demand. The United States refused to make final payment under its agreement with defendant unless and until defendant replaced the bridge or furnished suitable access in lieu thereof. Pursuant to such demand, defendant constructed a new bridge at the old site during the months of October and November in 1959, at a cost to defendant alleged to be $7,250.00. Plaintiff claims further damage in the sum of $1,645.81 for alleged additional expense in providing alternate access to the location of the work in progress.

Defendant contends that plaintiff is under an obligation to indemnify defendant against said expenses, both at common law and under the specific provisions of the contract between the parties. The contract provides, among other things:

Article III. "The subcontractor agrees to be bound with the contractor by all of the terms of the contract and to assume toward him all the obligations and responsibility that he by those documents assumes toward the owner and to indemnify and save harmless the said contractor from any and all loss, costs, damage or liability, due to the failure of the subcontractor to fully and faithfully keep and perform every obligation of the contractor to the owner in connection with the work hereunder undertaken by the subcontractor."

Article X. "* * * The subcontractor assumes all liability for injuries to persons or damage to property as a result of the performance of his contract, and shall indemnify the contractor against any loss or liability by reason of such injury or damage."

Plaintiff claims it is not liable under either theory and contends that both the United States and the defendant were contractually obligated to provide the plaintiff with routes of access to the tower sites; that plaintiff was an invitee of the United States and defendant in using the bridge and that the United States and defendant were negligent, (a) in failing to make any adequate, proper, usual or any inspection of the bridge; (b) in failing to warn plaintiff of the defective condition of the bridge; and (c) in advising plaintiff the bridge could safely be used for the transportation of materials, and that by reason of such alleged negligence, plaintiff is not contractually bound to indemnify the defendant.

The contract between the defendant and the United States (Bonneville Power Administration) provided, among other things:

"The contractor shall maintain all roads used by him and upon completion of the job shall leave them in as good a condition as when first used by him."

A bridge on a road is part of the road itself and this is without regard to the bridge's length or cost. People ex rel. Putnam v. Commissioners of Buffalo County, 4 Neb. 150, 158; Boshears v. Foster, 154 Tenn. 494, 290 S.W. 387, 389; Fischer v. Shasta County, 46 Cal.2d 771, 299 P.2d 222. A bridge is nothing more than that part of a road which crosses a stream. Denton v. Pulaski County, 170 Ky. 33, 185 S.W. 481; Read v. City of Camden, 54 N.J.L. 347, 373, 24 A. 549, 550.

This contract further provides:

"Cleaning up shall include * *, and (3) the full restoration of all property which was damaged during the prosecution of the work."

Plaintiff argues that under the terms of the contract the government was required to provide all right of way and there being such a requirement, the government was under a duty at all times to keep the roads and bridges in a usable condition for defendant. The argument is unsound for two reasons: (1) the specific provisions of the contract above mentioned clearly require the defendant to repair all damaged property and replace that destroyed, and (2) the "right of way" on which plaintiff relies is specifically defined in the contract and clearly means the area on which the road may be built, rather than the road or bridge itself. It is evident that defendant was under a direct obligation to maintain all bridges used by it and to leave them in as good condition as they were when first used. The government was within its legal rights in demanding of defendant that it replace the destroyed bridge.

The evidence establishes that plaintiff had been using another roadway which did not require the use of this bridge until some two or three days before the collapse. The surface of the other road became so muddy, due to incessant rainfall, that an alternate...