Papac v. Mayr Bros. Logging Co.

Decision Date25 September 1969
Docket NumberNo. 13--40233--11,13--40233--11
Citation1 Wn.App. 33,459 P.2d 57
CourtWashington Court of Appeals
PartiesPete PAPAC and Sam Baretich, d/b/a P & B Logging Company, Appellants, v. MAYR BROS. LOGGING CO., Inc., a corporation, Respondent.

Schumacher & Charette, John W. Schumacher Aberdeen, for appellants.

Clark W. Adams, Aberdeen, for respondent.

PEARSON, Judge.

Plaintiffs appeal from a judgment dismissing their cause of action for damages, upon a finding of contributory negligence. Plaintiffs acknowledge that there is but one issue on appeal--whether or not there was sufficient evidence to support the trial court's finding of contributory negligence. A review of the evidence is required to determine if there was substantial evidence in support of this finding. Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959).

The defendant, Mayr Brothers Logging Company, Inc., entered into a logging contract with plaintiffs, Pete Papac and Sam Baretich, d/b/a P & B Logging Company. Among other things, the contract required plaintiffs to build a new logging road to connect with an existing road, to permit access to the timber. Upon completion of this road, it became necessary for plaintiffs to move their Kohring power shovel approximately 2 1/2 miles over the existing and new logging roads. Having no equipment with which to acomplish this move, defendant, upon request of plaintiffs, furnished a truck equipped with a special trailer called a lowboy. Defendant also directed its employee, James Bachtel, to drive the truck.

Defendant contended at the trial that the truck, lowboy, and driver were loaned to plaintiffs and that the driver, therefore, became the servant of plaintiffs. This theory was rejected by the trial court, who found instead that the logging contract was orally modified so that moving the power shovel became a contract obligation of the defendant. This finding was supported by substantial evidence.

On May 5, 1966 the moving operation was commenced, with both plaintiff partners participating. The shovel was driven onto the lowboy by plaintiff, Sam Baretich, and secured by chains. The securing operation was a joint effort of plaintiffs, Baretich and Papac, and the defendant's driver. The plaintiffs elected to leave the boom of the power shovel elevated and the motor running. A grader preceded the truck, with chain attached to provide additional stability and traction on the hills.

Who actually directed the moving operation was disputed. There was substantial testimony by which the trial court could reasonably infer that the plaintiff, Baretich, was in a position of command, or at the least was acting in concert with the driver, to insure a safe journey.

There is no dispute, however, that at the commencement of the trip, Baretich assumed more than a passive role. Initially, he sat in the cab of the truck to show the driver the way over the road which he had constructed and with which the driver was unfamiliar. He directed the driver where to turn around and where to cross a river. He made suggestions about the road surface and the need for hooking the truck to the grader.

Early in the trip, Baretich assumed a position on the left running board of the truck, to keep a lookout for overhanging branches that might entangle the boom. Baretich acknowledged that he was familiar with the peculiarity of lowboy trailers to track to the inside of any curve. (It was this very peculiarity which later caused the accident.) Baretich also knew that the area where the accident occurred was a 'bad spot.'

As an example of the role Baretich played in the moving operation, we quote one portion of his testimony:

We got to the top of the hill and I told Stan (the grader operator) to wait up there where the new road took off, we might need some help, and I said I would also tell Jim (the truck driver) and when he gets there he can take a look and decide for himself whether he might want his assistance or not.

The accident occurred when the truck commenced negotiating the left-hand turn onto the new road. The trial court found that the truck driver cut the curve too sharply, causing the left rear wheels of the lowboy to run off the road surface. The wheels lost support, tipping the lowboy and shovel down an embankment, damaging the shovel.

The several witnesses to the occurrence, including another employee of defendant, Theodore Somero, who was following the lowboy in a pickup truck, all estimated the speed of the truck as it approached the turn at between 3/4 of a mile to 5 miles per hour.

The trial court found and concluded that defendant's driver was negligent in failing to exercise due care in executing the turn. The trial court also found and concluded that the plaintiff, Baretich, in his position on the running board, should have seen the accident setting up and warned the driver; and that had he been exercising reasonable care in this regard, the accident and resulting damage to the power shovel could have been avoided.

Plaintiffs make a persuasive, two-pronged attack upon this finding and conclusion: (1) plaintiff, Baretich, was not driving the truck and had no reason to anticipate that it would be negligently driven, and (2) there was no direct testimony that plaintiff, Baretich, had any opportunity to warn the driver or that a warning could have been given in time to have avoided the accident. Consequently, the failure to warn would not, as a matter of law, be a proximate cause of the accident. This latter argument largely stems from the driver's testimony that he had a clear view to the rear, could not see anything amiss, and stopped the truck immediately when he felt something was wrong.

The functions of a reviewing court in a case such as this are limited. We may not usurp the functions of the judge, acting in the capacity of the jury, and reverse the...

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3 cases
  • Xieng v. Peoples Nat. Bank of Washington
    • United States
    • Washington Court of Appeals
    • December 20, 1991
    ...to be on the other side, or because ... the judge believed some witnesses and disbelieved some others." Papac v. Mayr Bros. Logging Co., 1 Wash.App. 33, 36, 459 P.2d 57 (1969). In this case there was substantial evidence to support the trial court's view that the Bank's reason for nonpromot......
  • Raybell v. State
    • United States
    • Washington Court of Appeals
    • April 25, 1972
    ...determination and allowing plaintiff the benefit of all reasonable inferences from the relevant circumstances. Papac v. Mayr Bros. Logging Co., 1 Wash.App. 33, 459 P.2d 57 (1969). The precise reason by Raybell's vehicle left the highway was unknown. However, through protographic evidence, b......
  • State v. Hendrickson, 30--40486--111
    • United States
    • Washington Court of Appeals
    • October 8, 1969

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