Rader v. Gibbons & Reed Co.

• Citation: 261 Or. 354,494 P.2d 412
• Parties: Floyd RADER, Administrator of the Estate of Steven Ray Rader, Deceased, Respondent, v. GIBBONS AND REED COMPANY, a Utah corporation, Appellant.
• Decision Date: 09 March 1972
• Court: Supreme Court of Oregon

Page 412

494 P.2d 412

261 Or. 354

Floyd RADER, Administrator of the Estate of Steven Ray

Rader, Deceased, Respondent, v. GIBBONS AND REED COMPANY, a Utah corporation, Appellant.

Supreme Court of Oregon.

Argued and Submitted July 12, 1971.

Decided March 9, 1972.

Thomas M. Triplett, Portland, argued the cause for appellant. With him on the briefs were Souther, Spaulding, Kinsey, Williamson & Schwabe.

Donald B. Bowerman, Oregon City, argued the cause for respondent. On the brief were Misko, Njust, Bowerman & Sams, Oregon City.

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

McALLISTER, Justice.

This is an action for wrongful death. Plaintiff had a verdict and judgment in the amount of $40,000 and defendant appeals.

Plaintiff's intestate, Steven Rader, was killed on June 11, 1969, at about 8:30 p.m., while he was driving his car in an easterly direction on Highway 212 in Clackamas County in the vicinity of West Linn. A rock entered the windshield of his car and apparently struck him on the head, causing death. There were no eyewitnesses who saw the rock strike the car. A new highway was under construction in the area at the time, and defendant was the general contractor for the project. In connection with its construction activities, defendant had constructed a 'haul road' near Highway 212. The haul road ran roughly parallel to the highway in the area of the accident, and lay above the highway on a hillside. It was plaintiff's theory that the rock which killed Steven Rader rolled or fell from the haul road. Defendant contends that plaintiff failed to prove that theory, and also relies on evidence to support its own theory that the rock was flung by the tires of a truck which passed Rader's car on the highway.

At the close of all the evidence, defendant moved for a directed verdict on the ground that the evidence did not show that the rock fell from the haul road. The motion was denied. Defendant also moved the court to strike from the complaint all the specifications of negligence. This motion was granted as to an allegation that defendant was negligent in using a haul road in dangerously close proximity to the highway, but was denied as to the other two specifications of negligence--failing to maintain a barricade or other protective device to prevent rocks from falling onto the highway from the haul road, and failing to provide traffic controls on the highway. Defendant also excepted to the trial court's instructions submitting the two specifications of negligence to the jury. The first four assignments of error challenge these rulings and raise the question whether there was sufficient evidence of causation and of negligence.

We find no error in these rulings. There was ample evidence from which the jury could find that the rock came from the haul road above the highway, and that defendant could have prevented the accident had it maintained an adequate barricade or employed some form of traffic control to stop highway traffic while equipment was moving on the haul road. There was testimony that, at the time of the accident, large trucks or construction vehicles were using the haul road. A policeman who regularly patrolled the highway testified that large trucks moved continuously on the haul road and that he had, on occasion, clocked the trucks at speeds up to 40 miles per hour while they were loaded with rock.

There was also evidence which tended to show that rocks had fallen onto the highway from the haul road on earlier occasions and that defendant was aware of this.

The haul road had a rock and gravel surface. Along the side closest to the highway there was a 'berm' or ridge of loose rocks of various sizes. One witness testified that the berm averaged approximately two feet in height; pictures of the haul road show the berm, which appears somewhat lower than two feet in many areas. No other barriers or protective devices were provided, and no flagmen or traffic signals were employed at the time of the accident.

Other assignments of error challenge the admission of testimony that rocks had been seen on or falling to the highway on prior occasions. Evidence of prior similar occurrences is admissible under some circumstances in a negligence action. As a general rule, evidence of prior accidents or acts of negligence is not admissible to prove a specific act of negligence. Saunders v. A. M. Williams & Co., 155 Or. 1, 7, 62 P.2d 260 (1936). Such evidence is, however, admissible to prove the existence of a continuing defect or a continuing course of negligent conduct, and that the condition or course of conduct is in fact dangerous, or that the defendant had notice of its dangerous character. Clary v. Polk County, 231 Or. 148, 152, 372 P.2d 524 (1962); Saunders v. A. M. Williams & Co., supra, 155 Or. at 7, 62 P.2d 260; Krause v. Southern Pacific Co., 135 Or. 310, 316, 295 P. 966 (1931); Sheard v. Oregon Elec. Ry. Co., 131 Or. 415, 425, 282 P. 542 (1929); Coates v. Marion County, 96 Or. 334, 340, 189 P. 903 (1920); Gynther v. Brown & McCabe, 67 Or. 310, 319, 134 P. 1186 (1913). The admissibility of such evidence for these purposes is, however, subject to the requirement that the prior accidents must have occurred under similar conditions and circumstances. Galvin v. Brown & McCabe, 53 Or. 598, 614, 101 P. 671 (1909); Lee v. Meier & Frank Co., 166 Or. 600, 610--611, 114 P.2d 136 (1941). In the Lee case the court said that ascertainment of similarity of conditions may ordinarily be left to the discretion of the trial judge. The general rules are discussed and the cases collected in an Annotation, 70 A.L.R.2d 167.

In the present case the dangerous character of a continuing condition was clearly at issue. Plaintiff contended that defendant was negligent in failing to take precautions to protect against the danger of rocks falling to the highway from above. The evidence objected to tended to show both the existence of a dangerous condition and that defendant had notice of the dangers. The real question is whether the circumstances were sufficiently similar in each instance.

Only substantial similarity, not complete identity of circumstances, is required. See 70 A.L.R.2d at 201 et seq. What elements must be similar will depend, of course, on the nature of the allegedly dangerous condition in each case.

In this case the Rader accident occurred at about 8:30 p.m. on June 11, 1969, during daylight hours. There was evidence that construction vehicles were on the haul road at the very time of the accident. The berm was in place.

The testimony of Officer Irwin was that during that month of June he traveled the section of the highway frequently, and that many times he saw rocks on the highway while defendant was working. He also testified, however, that he never actually saw any rocks fall except during blasting operations, and that flagmen were employed during blasting. He did not pinpoint any specific spot on the highway where he had seen rocks.

Comer testified that his windshield was struck by a rock, the source of which he did not know, in the morning hours of a day early in May. There was equipment working on the haul road at the time. The jury could have found that this happened very near the scene of the Rader accident, and that the berm was in place at the time.

The time, place, and circumstances of these incidents are sufficiently similar to those of the Rader accident, and admission of this evidence was not error. The evidence tends to prove that the movement of equipment on the haul road created a danger of accidents like that suffered by Rader. Since Mr. Comer also testified that he notified defendant about the rock which hit his windshield his evidence is directly relevant on the question of defendant's notice of the dangerous condition.

Witnesses Peter and Knapp testified that in April they saw a boulder roll down across the highway from the area of the haul road. Mrs. Knapp testified that the matter came to defendant's attention. The haul road was under construction at the time, and the boulder was apparently dislodged by a caterpillar engaged in the road construction. The boulder crossed the highway about a quarter of a mile from the scene of the Rader accident. Mrs. Knapp also testified that she saw other rocks on the highway during the month or two prior to Rader's death, at times when construction equipment was working on the haul road.

Although some circumstances of the boulder incident are different from those surrounding the Rader accident, we think the evidence was properly admitted. The physical relationship between the haul road and the highway, a very significant factor, remained the same. The evidence tended to show that rocks which were dislodged by activity in the area of the haul road were a danger to highway traffic, and that defendant was aware of this danger.

Defendant suggests that the admission of evidence of prior occurrences is rendered erroneous by the absence of an instruction limiting the use of the evidence to its proper purpose. Such instructions were mentioned and approved in Clary v. Polk County, 231 Or. 148, 152, 372 P.2d 524 (1962) and in Coates v. Marion County, 96 Or. 334, 189 P. 903 (1920). It was defendant's duty, however, to ask for such an instruction, and the trial judge is not required to give such an instruction unless requested. Walls v. Clark, 252 Or. 414, 417--418, 449 P.2d 141 (1969). Defendant made no request for a limiting instruction.

Two assignments of error concern the trial court's refusal to permit defendant's expert witness, Ronald McReary, to testify to certain opinions. McReary is a civil engineer with a master's degree in engineering. Since 1964 he has headed a consulting engineering firm which operates in Oregon, Washington, Idaho, and California. His prior experience includes two years as a member of the Oregon State University engineering faculty, and more than ten years spent in 'the...