Risley v. Lenwell

Decision Date17 December 1954
Citation129 Cal.App.2d 608,277 P.2d 897
CourtCalifornia Court of Appeals Court of Appeals
PartiesBurdette G. RISLEY, by his general guardian, Hilda S. Risley, and Hilda S. Risley, Plaintiffs and Respondents, v. Earl Whitney LENWELL, William E. Bennett, Warren E. Raddatz, Simplot Investment Company, a corporation doing business under the firm name and style of Callda Lumber Company, Defendants and Appellants. Violet R. RISLEY, Plaintiff and Respondent, v. Earl Whitney LENWELL, William E. Bennett, Warren E. Raddatz, Simplot Investment Company, a corporation doing business under the firm name and style of Callda Lumber Company, Defendants and Appellants. Jay D. HUMBIRD, by his guardians ad litem, T. E. Humbird and Novella Humbird, Plaintiff and Respondent, v. Earl Whitney LENWELL, William E. Bennett, Warren E. Raddatz, Simplot Investment Company, a corporation doing business under the firm name and style of Callda Lumber Company, Defendants and Appellants. Civ. 8137.

Leland J. Propp, Auburn, for appellants Lenwell & Raddatz.

Archibald D. McDougall, Frank A. Morrow, Sacramento, for other appellants.

C. Ray Robinson, Merced, and John L. Larue, Nevada City, for respondents.

SCHOTTKY, Justice.

Respondents Burdette G. Risley, Violet R. Risley and Jay D. Humbird each suffered personal injuries when a portion of a load of lumber fell from a logging truck onto or in front of the automobile in which they were riding when the vehicles, approaching from opposite directions, were passing each other on a public highway. Each of the said respondents brought a separate action. Burdette and Violet Risley were husband and wife, and Burdette, being also a minor, appeared by his mother and general guardian, Hilda S. Risley, who also sued in her own right for recovery of Burdette's medical expenses. The actions were consolidated for trial and tried by a jury which returned verdicts against defendants Lenwell, Bennett, Raddatz and Simplot Investment Company, a corporation, and in favor of Burdette G. Risley in the sum of $125,000, in favor of Hilda S. Risley in the sum of $1,753.35, in favor of Violet R. Risley in the sum of $75,000, and in favor of Jay Humbird in the sum of $2,000. During the trial the actions were dismissed as to a fifth defendant, Cal-Ida Lumber Company, a corporation. Motions for new trial on the part of all four defendants were denied, and defendant Simplot Investment Company has appealed from the judgments and from the order denying its motion for judgment notwithstanding the verdict. Defendants Lenwell and Raddatz have appealed from the judgment, but the judgments are final as to defendant Bennett who did not appeal. It appears that Simplot Investment Company, hereinafter called 'Simplot', was doing business under the name of Cal-Ida Lumber Company, and that references in the record to 'Cal-Ida' should be taken to refer to Simplot doing business under that name.

The record shows that appellant Simplot was engaged in the lumber business and operated a mill at Downieville and a yard at Auburn, both in California. In connection with this operation logs had to be hauled from the woods to the mill at Downieville, and lumber had to be hauled from the mill to the yard at Auburn. Some of this hauling was done by independent contractors who furnished their own equipment and operators. Defendant Bennett was such a contractor and he owned the logging truck involved in this accident. This truck was originally a lumber truck consisting of a tractor and trailer with lumber rolls attached, but some months prior to the accident it had been converted into a logging truck. This involved the removal of the lumber rolls from the tractor and the installation of a so-called bunk as a resting place for the logs. A logging dolly, also having a bunk, was substituted for the trailer. The two bunks were each about eight feet in width and had chock blocks or cheese blocks at each end to keep the logs from rolling off. These blocks were approximately 14 or 15 inches wide at the base and were about 12 inches high. They were curved on the inner side so as to fit the general contour of the logs, and were so installed that they could be moved inward or outward along the bunks. Once placed in a given position, their further outward movement could be stopped by a chain and hook device, and presumably the logs kept them from moving inward when loaded.

It appears that on July 28, 1950, the date of the accident, and for some time prior thereto, Bennett was engaged in hauling logs for Simplot, using the truck involved in the accident. Appellant Raddatz actually drove the truck during these log-hauling operations. The record shows, and respondents do not deny, that Bennett was doing the hauling as an independent contractor and that Raddatz was his employee.

About three weeks before the accident Raddatz made arrangements with Harold Hallman, who was the superintendent in charge of Simplot's operations at Downieville, to haul lumber for Simplot, using the Bennett logging truck. Simplot hauled lumber from Downieville to Auburn with its own trucks, which were regular lumber trucks, but it had been operating the mill on two shifts and was behind in its hauling schedule. At least four other truckers were using their logging trucks to haul lumber for Simplot, apparently at night or when it was raining and the trucks could not be used in log hauling. In order to prepare the Bennett truck for lumber hauling it was necessary to provide some sort of bed or platform upon which the lumber could be placed. Raddatz discussed this with Hallman and it was decided to bridge the space between the two bunks with long timbers or stringers. Accordingly, Simplot cut 8 six by eight inch stringers about 29 or 30 feet in length which, when placed on the bunks, extended from about four feet in front of the tractor bunk to a like distance behind the dolly bunk. These stringers did not form a solid bed, but were spaced about four inches apart, with the six-inch side resting on the bunks. The outside stringers were placed up against the chock blocks which, being curved to accommodate logs, did not fit against the straight sides of the stringers. After the stringers were placed on the bunks, six cross pieces, consisting of four by four inch timbers and known as stickers, were placed at intervals crosswise on top of the stringers, and it was on these stickers that the lumber load was placed. The stickers were not nailed to the stringers. Apparently the other truckers, hauling lumber with logging trucks, used the same arrangement, for another set of the timbers was kept on the mill property. The evidence indicates that Simplot owned the timbers and kept them there for the convenience of the truckers. Raddatz, who claimed that he made four or five trips hauling lumber before the accident, stated that he did not always use the same set of timbers.

At the time of the accident the Bennett truck was being driven by appellant Lenwell. Raddatz testified that he was unable to continue hauling logs by day and lumber by night, so he engaged Lenwell to drive the truck in connection with the lumber hauling. Raddatz had authority from Bennett to do the hiring in this instance, and there is no question regarding Lenwell's status as an employee of Bennett. Lenwell had worked for Raddatz for several months, some four years before. On July 28, 1950, which was the day of the accident, Lenwell was at the mill waiting for Raddatz when the latter came in with the truck that evening. Raddatz had been hauling logs and Lenwell was to haul lumber with the truck that night. It was Lenwell's first trip. The loading of the truck took place around 6:00 p. m. that evening. The evidence shows that Simplot's lift truck operator picked the stringers up from the ground with the lift truck, took them over to the Bennett truck, and dumped them in a pile onto the tractor and dolly bunks. These timbers were green lumber and weighed about 500 pounds each. Raddatz and Lenwell, assisted by the lift truck operator, put the timbers in place on the bunks. Apparently Raddatz and Lenwell placed the stickers or cross-members on without any help, and after this decking was completed the lift truck operator placed six units of lumber on it, consisting of about 8,000 board feet of green fir lumber. The stickers were placed so that there would be one in front, one behind and one on top of each bunk. This was done to equalize the load on each bunk, and two units of lumber were placed side by side on each of these two sets of stickers, with a third unit centered on top. The units were placed on the truck one at a time, and after the loading was completed Raddatz and Lenwell put chains around the load to bind it and cinched the chains tight with chain binders. There is no claim that any employee of Simplot helped to bind the load or inspected the load or bindings before the truck left. Raddatz testified that they put five chains around this particular load, and that the front chain was fastened to the tractor bunk. He could not recall whether the rear chain was fastened to the dolly bunk, but Lenwell in his deposition testified that it was not. Two state highway patrolmen were at the scene shortly after the accident occurred. One of them testified that the load was not bound to either bunk, but admitted that he had not made a detailed observation. The other testified positively that the load was not bound to the dolly bunk, but that he did not observe how the load was bound in front.

After the load was secured Lenwell took the truck and started on the trip to Auburn. He testified that before the accident he stopped the truck twice and checked the chains which bound the load. The first time, he took up slack in two of the chains, but no adjustment was necessary when he stopped the second time. The accident occurred at about 11:20 p. m.,...

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