Snodgrass v. Risley

• Decision Date: 19 November 1952
• Citation: 196 Or. 506,250 P.2d 392
• Parties: SNODGRASS v. RISLEY et al.
• Court: Oregon Supreme Court

Page 392

250 P.2d 392

196 Or. 506

SNODGRASS v. RISLEY et al.

Supreme Court of Oregon.

Argued and Submitted Sept. 8, 1952.

Decided Nov. 19, 1952.

Sam Kyle, Albany, argued the cause for appellant. With him on the brief was Mark V. Weatherford, Albany.

Bruce Spaulding, Portland, argued the cause for respondent John Risley. On the brief were Wilbur, Mautz, Souther & Spaulding, of Portland, and Karl T. Huston, Corvallis.

George A. Rhoten, Salem, argued the cause for respondents Carl Steeprow and Elden J. Callahan. On the brief were Photen, Rhoten & Speerstra, Salem, and Karl T. Huston, Corvallis.

Before BRAND, C. J., and ROSSMAN, LUSK, LATOURETTE, WARNER and TOOZE, JJ.

ROSSMAN, Justice.

This is an appeal by the plaintiff from a judgment of the circuit court in favor of the three defendants, Carl Steeprow, Elden J. Callahan and John Risley, which was entered after (1) the court had sustained a motion for an involuntary nonsuit made by the two defendants first mentioned, and (2) the jury, upon submission to it of the case as to the third defendant [Risley], had returned a verdict in his favor. The basis of the action, which resulted in the entry of the attacked judgment, was a charge that all three defendants, on May 6, 1949, had committed acts of negligence and that as a result thereof the plaintiff suffered a personal injury.

The plaintiff-appellant submits three assignments of error which attack rulings in which the circuit court (1) sustained the motion made by defendants Steeprow and Callahan for an order of involuntary nonsuit; (2) instructed the jury (in plaintiff's cause against Risley) that contributory negligence, if the plaintiff was guilty of any, would bar his recovery; and (3) declined to instruct the jury concerning the purported applicability of the 'and generally' clause of the Employers' Liability Act, § 102-1601, O.C.L.A. to the duties which the defendant, Risley, owed the plaintiff.

The plaintiff sustained the injury for which he seeks redress May 6, 1949, at the log dump of one Bayless Lumber Company, which is located near Philomath, when a log rolled partially off a logging truck and struck him. The load of logs upon the truck was produced by the defendants, Steeprow and Callahan. It was brought to the dump by the defendant, Risley. The plaintiff was an employee of Bayless Lumber Company, which is not a party to this case, and was in charge of its log pond. A part of his duties consisted of scaling logs which were brought to the pond and dumping them into it.

Defendants Steeprow and Callahan, as partners, were engaged in the business of logging. They produced logs at a place about 22 miles from the Bayless mill and sold them to that concern. They had three employees. Neither of those two defendants nor any of their employees performed services upon the premises of the plaintiff's employer.

Defendant Risley was engaged in the transportation of logs. He owned and operated a truck which was built for log hauling. The complaint, referring to logs produced by Steeprow and Callahan, alleges:

'* * * said logs were then hauled by the said Risley in an independent operation at the rate of so much per one thousand feet from said dock to the dock where the same were unloaded by the said Bayless Lumber Company, and this was an independent and separate operation under the exclusive control, management and direction of the said defendant Risley.'

There is no contention that Risley was an employee of Steeprow and Callahan. He had no employee.

The above identifies all of the parties with whom this case is concerned. In short, the defendants, Steeprow and Callahan, were loggers whose place of production was approximately 22 miles from the Bayless Lumber Company to which they sold logs. The logs were hauled from the place of production to the Bayless mill by the defendant, Risley, an independent contractor. We assume from the evidence that Risley's relationship to the producers [Steeprow and Callahan] and the buyer of the logs [Bayless Lumber Company] was no different than if the hauling had been done by a railroad. The plaintiff was an employee of the Bayless Lumber Company and a stranger to the defendants.

Immediately prior to the plaintiff's injury, Risley brought to the Bayless Company's log dump a load of six logs. According to the plaintiff, the logs ranged in length from 40 to 44 feet and in diameter from 16 [196 Or. 510] to 30 inches. They lay upon Risley's truck in three tiers; three constituted the lower tier, two the second, and the sixth was on top.

Risley's truck, which no one claims was defective or unsuitable for hauling logs, possessed two crossbeams which the witnesses termed bunks. A logging truck has no body or bed. Its bunks which lie above its reach serve the same purpose as the bed of a normal vehicle. The bunks are the part of the truck upon which the load of logs rests. They are equipped near their ends with bunk blocks capable of adjustment back and forth. The blocks, when moved into place, keep the lower tier of logs from rolling off the bunks and hold those logs close to each other. The forward part of Risley's truck was the motive or tractor part; the rear part was termed by the witnesses as the trailer. The forward bunk was located at the place where the two parts of the truck united; in fact, a 'pin', which ran through the forward bunk and through the reach, held the tractor and trailer together. The rear bunk was near the rear wheels. Items of equipment which Risley employed were three chains which he fastened around the load of logs after the latter had been placed upon the truck. One of the chains was wound around the logs at their forward end, another near the rear end and the third was strung around the logs in the middle of the load. The chains had devices in the nature of levers which enabled Risley to draw them taut and then fasten them in that position.

The plaintiff claims that the logs were negligently loaded upon the truck and that later, when the load reached the Bayless log dump, Risley prematurely loosened two of them. He alleges that the purported premature loosening was negligence. His complaint, in stating the charges against Steeprow and Callahan, segregates them into the following particulars: (1) 'negligently placed the logs upon the defendant Risley's truck * * * in such insecure, unstable and faulty positions and in such a manner that said logs would not stay and remain upon said truck'; (2) 'negligently failed to place and balance said logs upon said truck in such manner that they would remain thereupon safe and secure'; (3) 'so negligently placed the said logs upon said truck that they were insecure, were out of balance and were in such position that the same would fall off after the binding chains placed around the same were removed.'

Continuing its charges, the complaint avers that 'the defendant Risley assisted in said log loading of said trucks by the said defendants Steeprow and Callahan and negligently permitted the said Callahan and Steeprow to load said logs when the same were not properly balanced and when the same were so placed that they were not secure upon said logging truck and in such manner that the same would fall off the said truck at and when the binding chains placed around the same were removed.' The complaint also charges that Risley 'negligently transported said logs thus negligently loaded and thus placed and remaining upon said truck in such unsafe position on to the dock of the Bayless Lumber Company.' It avers that 'when the plaintiff was stationed between the pond and the said logs and was engaged in scaling said logs * * * Risley negligently unloosened two binding chains which bound said logs upon said truck and caused and permitted one of said logs, because of the negligent loading thereof on the part of each and all of the defendants as herein alleged, to fall from said truck and upon the person and body of the plaintiff herein.'

We shall now take note of the evidence which indicates the manner in which the six logs were loaded upon Risley's truck at the scene of Steeprow and Callahan's operations. The plaintiff called the three defendants to the witness stand and had them describe, detail by detail, the method by which the truck was loaded. He does not claim that any one of the three gave untruthful testimony and does not seek to be relieved of anything which they said descriptive of the loading operations. Nor did he present any evidence in conflict with theirs. We shall now summarize their testimony.

Risley testified:

'I was the boss on the loading.'

He amplified that statement by adding:

'How much to put on, and how to put it on, you might say. If I didn't like it, I would tell them so. * * *

'Q. But you did tell them when to shift the load, how much to put on and how to place it? A. That's right.'

Defendants Steeprow and Callahan brought their logs by power equipment from the place where the timber was felled to an assembly place adjacent to their loading dock. Steeprow had charge of those operations. The loading dock included a large log, termed a brow log, and skids consisting of smaller logs which are notched into it and extend toward the area where the logs that are ready for shipment lie. One the far side of the brow log is the road which is used by the trucks. A truck which is about to be loaded draws close to the brow log and stops there. The skids which we have mentioned are at the same level as the bunks of the truck. A caterpillar tractor, equipped with a blade and operated by Callahan, rolls logs over the skids and over the brow log upon the truck.

Before the first log was rolled upon Risley's truck immediately before the ill-fated trip was made, the bunk blocks on the far side of the truck were shifted into the place which, it was assumed, was right for the accommodation of the first tier of logs. That having been done, Callahan's tractor rolled logs 1, 2 and 3 upon the bunks....