Short v. D. R. B. Logging Co.

• Decision Date: 12 September 1951
• Citation: 235 P.2d 340,192 Or. 383
• Parties: SHORT v. D. R. B. LOGGING CO.
• Court: Oregon Supreme Court

Page 340

235 P.2d 340

192 Or. 383

SHORT v. D. R. B. LOGGING CO.

Supreme Court of Oregon.

Sept. 12, 1951.

Husband, Fort & Johnson, of Eugene, for the petition.

Evans & Thwing, of Eugene, contra.

Before BRAND, Chief Justice, and HAY, ROSSMAN, LUSK and WARNER, Justices.

HAY, Justice.

Plaintiff has petitioned for a rehearing.

He contends that we erred in holding that there was no proof of negligence, and in that connection says that res ipsa loquitur was applicable.

Sufficiency of the evidence was not argued by plaintiff either on brief or orally. His counsel explained that they acted upon the assumption (they put it, gracefully, 'erroneous assumption') that, since the trial judge did not direct the verdict upon the ground of insufficiency of proof of negligence, such ground could not properly be considered upon plaintiff's appeal. This assumption was incorrect. An appellant in such a situation has the burden of showing that the allowance of a motion for directed verdict was not justified upon any of the grounds stated, whether passed upon by the trial court or not. Bohart v. Parker, 76 Or. 371, 377, 147 P. 188, 149 P. 85; 3 Am.Jur., Appeal and Error, § 828.

The question of the applicability of res ipsa loquitur was not argued, and perhaps we should be warranted in considering it as having been waived. 3 Am.Jur., Appeal and Error, §§ 770, 776; General Construction Co. v. Fisher, 149 Or. 84, 87, 39 P.2d 358, 97 A.L.R. 1252, appeal dismissed 295 U.S. 715, 55 S.Ct. 646, 79 L.Ed. 1671, rehearing denied 295 U.S. 768, 55 S.Ct. 828, 79 L.Ed. 1709; Longbotham v. Takeoka, 115 Or. 608, 617, 239 P. 105, 43 A.L.R. 1285. However, as our opinion held that there was no proof of negligence, it may be that we should have considered the applicability of res ipsa of our own motion. We shall now do so.

The rule in Oregon is that, where a plaintiff makes specific allegations of negligence in his complaint, he may invoke res ipsa loquitur, if applicable, as to such specific acts. Boyd v. Portland Electric Co., 40 Or. 126, 132, 66 P. 576, 57 L.R.A. 619; Cosgrove v. Tracy, 156 Or. 1, 12, 64 P.2d 1321; Suko v. Northwestern Ice & Cold Storage Co., 166 Or. 557, 566, 113 P.2d 209; 38 Am.Jur., Negligence, § 305, n 15. Lest we be misunderstood, we hasten to add that, of course, he may, if he wishes, allege negligence both generally and specifically, and invoke res ipsa, if applicable, as to either or both.

Plaintiff here, in addition to specific acts of negligence, attempted to allege negligence generally. He says that we overlooked such general allegations, but such is not the case. The allegations in question simply stated, in effect, that defendant had placed a small pile of logs upon the ground to the left of the truck and trailer; that 'plaintiff was standing at the end of these logs, fartherest [sic] away from the loading operations'; and that defendant so carelessly and negligently conducted its loading operations as to cause and permit a log to slide off the trailer bunks 'directly onto the' small pile of logs, 'and the force of the impact therefrom threw said logs into and against plaintiff * * *.' These were not general allegations of negligence, but rather allegations of general negligence under specific circumstances. The allegations which implied that plaintiff was standing clear of the small pile of logs, and that the impact threw the logs against his person, were completely disproved by the evidence, including plaintiff's own testimony.

Whether or not res ipsa is applicable must be determined by the facts and circumstances of any given case. 65 C.J.S., Negligence, § 220(10), n 39; 38 Am.Jur., Negligence, § 355, n. 12. The requisite facts and circumstances must be shown by the evidence. Dunning v. Northwestern Electric Co., 186 Or. 379, 429, 199 P.2d 648, 206 P.2d 1177; Gow v. Multnomah Hotel Co., Or., 224 P.2d 552, 555.

Plaintiff was injured by the impact of the falling log upon the log pile on which he was standing. He was upon defendant's premises by implied invitation, but his invitation certainly did not authorize him to enter the actual loading area while another driver's truck was being loaded. The logs in the small pile were used, when necessary, to complete loads. Plaintiff climbed upon the pile to advise the other driver as to the best method of binding a one-log load. He did not owe either the other driver or defendant any duty in this regard. His complaint admits that the log pile was a place of danger. By entering an area not within the terms of his implied invitation, plaintiff became, at the most, a mere licensee. Napier v. First Congregational Church, 157 Or. 110, 113, 70 P.2d 43; Christensen v. Weyerhaeuser Timber Co., 16 Wash.2d 424, 133 P.2d 797, 801; Ciarmataro v. Adams, 275 Mass. 521, 176 N.E. 610, 75 A.L.R. 1171, 1174; 38 Am.Jur., Negligence, § 100; 2 Restatement, Torts, § 343, Comment b. A mere licensee cannot invoke res ipsa loquitur. Carr v. Oregon-Washington R. & N. Co., 123 Or. 259, 279, 261 P. 899, 60 A.L.R. 1434; Prosser, Res Ipsa Loquitur in California, 37 Cal.L.Rev., 183, 208 (note 150).

Plaintiff, having voluntarily and unnecessarily brought himself within the danger zone of the loading operation, being aware of the dangers incident thereto, his action in that regard, we think, created or brought about a condition which resulted in his injury. This brought the case within one of the limitations upon the applicability of res ipsa loquitur. 'The injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured.' Wigmore, Evidence, 3d ed, Vol. IX, p. 380. We may assume that, normally, such limitation would have reference to a plaintiff's voluntary participation with the defendant in the operation or control of the injurious machine or thing, but we think that it is also applicable to a situation such as we have here. Plaintiff had the opportunity of making an intelligent choice as to whether to remain in a place of safety without the danger zone or to go within it. For his own convenience and purposes he chose to go within it. There was no evidence that defendant knew of plaintiff's dangerous situation in time to have given him adequate warning or otherwise enabled him to have avoided injury.

The facts to which we have referred were shown by the evidence at the time when the sufficiency thereof was challenged by defendant's motion or nonsuit. We have recited them, not for the purpose of showing that plaintiff was guilty of contributory negligence (although they do tend to show that he was so guilty) but simply because, in our opinion, they prevented him from invoking res ipsa loquitur to raise an inference of negligence.

Other errors are suggested by plaintiff, but, in our view of the evidence, none of them are of sufficient merit to require further discussion.

The petition for rehearing is denied.

BRAND, Chief Justice (specially concurring).

I concur in the result. I confess to having had grave doubts as to the propriety of the action of the trial court in directing a verdict for the defendant. The doubt is somewhat fortified by the difficulty which this court has had in arriving at a satisfactory basis for the decision. Our first opinion is based solely on the absence of any substantial evidence of negligence by the defendant. The second affirms the judgment on the additional ground that plaintiff voluntarily brought himself within a danger zone and assumed the risk; in substance, that plaintiff was guilty of contributory negligence. On the facts the case is at least as close a one as will ever warrant an order directing a verdict.

I agree that this is not a proper case for applying the doctrine of res ipsa loquitur, but for reasons entirely different from those asserted in the opinion of the court on rehearing. Res ipsa loquitur is merely a rule concerning possible inferences which may be drawn from facts proven. It takes a case past a nonsuit. It concerns the sufficiency of evidence of negligence by a defendant. It is not normally concerned with any question of contributory negligence by the plaintiff. The authorities are fully discussed in Ritchie v. Thomas, Or., 224 P.2d 543, and Gow v. Multnomah Hotel, Inc., Or., 224 P.2d 552. Briefly summarized, the rule is that where the plaintiff does not participate in the activity, normally the operation of some instrumentality by the defendant, the actions of the plaintiff have nothing to do with the applicability of the rule. If a plaintiff is guilty of independent contributory negligence he will of course be barred from recovery, but not because of any rule of res ipsa. If, on the other hand, the plaintiff participates in the operation of the activity of the defendant which causes the mishap--if he as well as the defendant is a participant in operating the instrumentality, then he must 'eliminate himself as a responsible cause of the accident.' This is not because of any general rule that a plaintiff must negative contributory negligence in his case in chief, but is because, though the falling of a log or a barrel or the breaking of a chair may speak of negligence, it does not speak of negligence by the defendant if either of two people, the defendant or the plaintiff, may have caused the log or the barrel to fall or the chair to break. Under such circumstances it is held that if the plaintiff would invoke the doctrine of res ipsa loquitur he must eliminate himself as a responsible cause of the event which resulted in the injury. In the case at bar, the plaintiff did not participate in any way in the operation which caused the log to fall from the truck. To be sure there was evidence from which a jury could well have found him guilty of contributory negligence which would bar his recovery whether the defendant was or was not also negligent. But since plaintiff did not participate in the operation which caused the log to fall, it is beside the point to consider...