Pattle v. Wildish Const. Co.

• Decision Date: 19 February 1975
• Citation: 529 P.2d 924,270 Or. 792
• Parties: Iris M. PATTLE, Respondent, v. WILDISH CONSTRUCTION COMPANY, an Oregon Corporation, and Wildish Sand and Gravel Company, an Oregon Corporation, Appellant.
• Court: Oregon Supreme Court

Page 924

529 P.2d 924

270 Or. 792

Iris M. PATTLE, Respondent, v. WILDISH CONSTRUCTION COMPANY, an Oregon Corporation, and Wildish Sand and Gravel Company, an Oregon

Corporation, Appellant.

Supreme Court of Oregon.

Argued and Submitted Nov. 4, 1974.

Decided Dec. 19, 1974.

Rehearing Denied Feb. 6, 1975.

Review Denied Feb. 19, 1975.

William G. Wheatley, Eugene, argued the cause for appellant. With him on the briefs were Jaqua & Wheatley, Eugene.

Roy Dwyer, of Dwyer & Jensen, P.C., Eugene, argued the cause and filed the brief for respondent.

Before O'CONNELL, C.J., and McALLISTER, HOLMAN, TONGUE, HOWELL, BRYSON and SLOPER, JJ.

TONGUE, Justice.

This is an action for damages for personal injuries sustained in an automobile accident. Plaintiff's automobile was stopped at a stop sign when defendant's truck went out of control due to the breaking of the idler arm shaft in its steering mechanism and collided with plaintiff's car.

Plaintiff's complaint alleged, in separate counts, both general negligence based upon res ipsa loquitur and specific negligent conduct in that defendant failed to properly maintain the truck or to inspect or replace the idler arm shaft. Defendant's answer denied that this is a res ipsa loquitur case and also denied the specific allegations of negligence. The case was tried to the court, without a jury. The court found that plaintiff was injured as a result of defendant's negligence, apparently upon the basis of res ipsa loquitur, and entered a judgment for $35,603, in favor of plaintiff. Defendant appeals.

The truck was a 1964 Ford dump truck with a gross capacity of 50,000 pounds. At the time of the accident, on June 16, 1969, it had been driven 131,643 miles. According to the testimony of its driver, as he was proceeding around a curve the idler arm shaft of the steering assembly broke, causing the truck to go out of control.

This truck was one of a fleet of 20 trucks. There was testimony that the steering mechanisms of these trucks, including these shafts, are under heavy pressure, particularly when the trucks are fully loaded, and that shafts have broken on four other trucks, including one before this accident. The circumstances of those incidents do not appear, except that on one occasion shortly before this accident a shaft had broken on another truck when its driver backed it into a ditch and was trying to get out, under circumstances which may have put unusual 'stress' on that shaft.

There was also evidence that this truck had been specially serviced at the driver's request 15 times during the two months prior to the accident, including a 'driver report' about six weeks before the accident stating that steering on the truck was 'loose.' There was testimony, however, that 'loose steering' was not an indication that this shaft was about to break and that there would be no warning before the breaking of such a shaft.

There was evidence that this truck was overloaded in that it had a gross weight of 70,000 pounds at the time of the accident. There was no evidence, however, that the steering mechanism was subjected to any extraordinary pressure at the time of the accident or that overloading was the cause of the accident. Neither was this overloading alleged as negligence. There was also no direct evidence of any lack of lubrication or other improper maintenace, at least during the six months before the accident.

The shaft in question was approximately one inch in diameter and was located in such a manner that only its end or 'tip' was visible. According to the testimony, it would have required approximately two hours for mechanics to remove the shaft for inspection and that even then a 'magnaflux' process would be required to reveal any latent defects. This particular shaft had never been previously removed for inspection.

Defendant produced records and testimony to show that for the six months prior to the accident the truck was serviced for lubrication at intervals which ranged from 1,020 to 1,770 miles and that when this was done a visual inspection was made of the steering mechanism. Previous maintenance records were not produced. Neither were the mechanics who repaired the truck after the accident produced as witnesses and the broken shaft was not produced, but only a new duplicate shaft.

After the accident a new shaft was installed and also a new 'bracket' to hold the shaft. There was some indication that the original 'shaft' and 'bracket' were not properly designed for the amount of pressure and stress placed upon those parts.

Plaintiff's primary contention is that this is a proper case for application of 'res ipsa loquitur.' We have previously held in Brannon v. Wood, 251 Or. 349, 355, 444 P.2d 558, 561 (1968), that the elements which must be present for the doctrine to be available are:

"* * * (1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. * * * ' Prosser, Law of Torts (2d ed.) 201--202, § 42.'

See also St. Paul Fire & Mar. Ins. v. Watkins, 261 Or. 473, 476, 495 P.2d 265 (1972); Mayor v. Dowsett, 240 Or. 196, 214, 400 P.2d 234 (1965); Kaufman v. Fisher, 230 Or. 626, 634, 371 P.2d 948 (1962); and 2 Harper and James, The Law of Torts 1081, § 19.6 (1956).

We may assume, for the purposes of this case, that the first and third requirements are satisfied by the evidence and that the principal issue relates to the second requirement, that of control by the defendant.

It is well established in Oregon that the requirement of control by the defendant does not mean that defendant's control must have been exclusive in terms of physical possession. Gow v. Multnomah Hotel, Inc., 191 Or. 45, 55-- 65, 224 P.2d 552, 228 P.2d 791 (1951); Powell v. Moore, 228 Or. 255, 264--268, 364 P.2d 1094 (1961); and Denny v. Warren, 239 Or. 401, 406--407, 398 P.2d 123 (1964). According to 2 Harper and James, Supra at 1085, § 19.7:

'The second requirement for res ipsa loquitur is commonly stated in terms of defendant's exclusive control of the injuring agency. The logical basis for this requirement is simply that it must appear that the negligence of which the thing speaks is probably that of defendant and not of another. * * *'

This view of the requirement of control by defendant has been adopted in Oregon. In Denny v. Warren, Supra, defendant installed a dishwasher in a home after which a leak developed in a brass coupling. The court said (at 404, 398 P.2d 123) that there were three possible causes of the leak: (1) that the plumber carefully installed a coupling which was defective, but with a defect of such a nature that it could not have been detected in the exercise of ordinary care; (2) that the plumber negligently installed an obviously defective coupling; or (3) that the plumber negligently installed a sound coupling. The court then said (at 405, 398 P.2d at 125):

'* * * (I)n order to apply Res ipsa loquitur, it must be possible to say * * * that it is more probable than not that the person whose negligence caused the injury was the defendant and not some third party, e.g., in the case before us, a remote supplier.'

The court went on in that case to weigh the probabilities and concluded (at 407, 398 P.2d at 126) that 'there is little, if any, more evidence tending to show that the negligence of the defendant caused the injury than that the negligence of someone else caused it.'

To the same effect, see Rambo v. Groshong, 239 Or. 520, 522, 399 P.2d 21 (1965); and Phillipsen v. Hunt, 129 Or. 242, 245--246, 276 P. 255 (1929). Cf. St. Paul Fire & Mar. Ins. v. Watkins, Supra, 261 Or. at 478, 495 P.2d 265.

The evidence must be such as to provide a rational basis upon which the trier of the fact can find that the negligence which caused the injury was Probably that of defendant rather than that of someone else. It is a question of law for the court, however, to determine whether the evidence in a given case is sufficient to provide such a basis so as to enable the trier of the fact to properly...