Varley v. Consolidated Timber Co.

• Decision Date: 07 July 1943
• Citation: 139 P.2d 584,172 Or. 157
• Parties: VARLEY <I>v.</I> CONSOLIDATED TIMBER CO.
• Court: Oregon Supreme Court

172 Or. 157

139 P.2d 584

VARLEY

v. CONSOLIDATED TIMBER CO.

Supreme Court of Oregon.

Argued June 9, 1943.

Reversed July 7, 1943.

Rehearing denied September 8, 1943.

Appeal and error

1. In passing on propriety of entering judgment for defendant notwithstanding verdict for plaintiff, Supreme Court must determine whether evidence justified verdict for plaintiff, and evidence must be viewed in light most favorable to plaintiff.

Master and servant

2. A woman who had charge of cookhouse at logging camp under contract with independent contractor assisting timber company, and who sometimes furnished meals to company's employees, was an "independent contractor" and not an "employee" of either the camp operator or the company, as regards company's liability for injuries to the woman.

Railroads

3. In determining timber company's liability for injuries to cook at logging camp without ingress or egress except company's logging railroad, cook was not a "trespasser" or a "licensee" in using the railroad right of way but was an "invitee", where cook's work was a necessary adjunct to logging business.

Railroads

4. A "push-car" constructed of four wheels and a platform and weighing about 175 pounds, operated by manpower on logging railroad, did not constitute a "train" or "speeder" within Safety Code authorizing train or speeder to be moved on right of way only after obtaining clearance.

Railroads

5. That Safety Code prohibiting the moving of trains or speeders on logging railroad's right of way without obtaining clearance was silent as to push-cars could not be construed as an inhibition against their use on such railroads.

Railroads

6. In action against owner of logging railroad for injuries to invitee when push-car on which invitee was riding was struck by owner's push-car, whether braking device on push-car on which invitee was riding met requirements of the Logging Safety Code was for jury.

Railroads

7. In action against owner of logging railroad for injuries to cook at logging camp which had no ingress or egress except the railroad, when push-car on which cook was riding was struck by owner's push-car, evidence required judgment for cook on grounds that she was an invitee, that proximate cause of accident was owner's negligence, and that cook was not contributorily negligent.

Appeal and error

8. Where trial court granted defendant's motion for judgment notwithstanding verdict, and denied defendant's motion for new trial without passing on merits of motion, Supreme Court in reversing judgment would permit defendant to present its motion for new trial as though no ruling had been made thereon.

                  See 27 Am. Jur. 481
                  5 C.J.S., Appeal and Error, § 1573
                

Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Multnomah County.

WALTER L. TOOZE, Judge pro tempore and JAMES W. CRAWFORD, Judge.

Action by Edith M. Varley against the Consolidated Timber Company to recover for injuries sustained by plaintiff when a push car on which she was riding was struck by push car of defendant. From a judgment for defendant notwithstanding a verdict for plaintiff, plaintiff appeals.

REVERSED. REHEARING DENIED.

Arthur E. Prag, of Portland (LeRoy L. Lomax, of Portland, on the brief) for appellant.

Randall B. Kester, of Portland (Maguire, Shields, Morrison & Biggs, of Portland, on the brief) for respondent.

BAILEY, C.J.

The plaintiff, Edith M. Varley, has appealed from a judgment entered in favor of the defendant, Consolidated Timber Company, pursuant to chapter 309, Oregon Laws 1941, notwithstanding verdict and judgment in favor of the plaintiff.

After both parties to the litigation had rested the case the defendant moved for a directed verdict in its favor, on the ground that the plaintiff was, at the time she was injured, a trespasser or a bare licensee on the right of way of the defendant company and that there was no evidence that she was injured by a wilful or wanton act of the defendant, and on the further ground that the plaintiff was chargeable with contributory negligence. The motion was denied, and the jury returned a verdict in favor of the plaintiff, accompanied by special findings. Judgment was entered thereon in favor of the plaintiff. Thereafter the defendant moved for judgment in its favor notwithstanding the verdict and for a new trial. Argument was heard by the Honorable Walter L. Tooze, circuit judge pro tempore, who presided at the trial, and the Honorable James W. Crawford, circuit judge. The two judges allowed the motion for judgment notwithstanding verdict and denied the motion for a new trial.

1. In passing upon the propriety of the court's action in entering judgment for the defendant, we must determine whether the evidence was sufficient to justify a verdict in favor of the plaintiff. The evidence, therefore, must be viewed in the light most favorable to the plaintiff.

The defendant is a corporation engaged in logging operations in burned-over areas of Tillamook, Washington and Clatsop (and perhaps Columbia) counties. In this connection it maintains a logging railroad approximately nineteen miles in length. The corporation's principal office and equipment are located at Glenwood, in Washington county, which place is also the principal terminal of the logging railroad.

In logging the areas mentioned the defendant is assisted by five or more independent logging contractors, among them the firm of Converse & Hickman. The logging show assigned to the latter company is located on one of the branches of the logging railroad. Other independent contractors are located on the main line and other branches of the railroad. The defendant corporation hauls logs for the independent contractors with its own rolling equipment, and in addition provides at least part of their transportation of men and supplies. The contractors have a right to operate on the logging railroad their own light rolling equipment.

The camp of Converse & Hickman is situated about a mile and a half from Vanderjack's landing, the terminal of the railroad branch on which the company's logging show is located. From the camp to the landing there is a descending grade of approximately three per cent, and for about three miles above the camp there is a three per cent ascending grade. The camp has no means of ingress or egress except the logging railroad.

2. Mrs. Varley had charge of the cook-house at the camp under a contract with Converse & Hickman. She furnished meals for that company's employees at the camp, who numbered forty-four or forty-five when she was injured. At times she also provided meals for employees of the defendant corporation working in that vicinity. The trial court properly ruled that she was an independent contractor, and not an employee of either Converse & Hickman or the defendant. It was admitted by the defendant that the business conducted by the plaintiff was a necessary adjunct to the logging operations of Converse & Hickman.

All the supplies used in preparing meals for the loggers were furnished by Mrs. Varley. On that account it was necessary for her to leave the camp every two weeks to do marketing and shopping. She was usually taken from the camp to Vanderjack's landing by Dan May, an employee of Converse & Hickman. Sometimes she was transported on a speeder owned by Converse & Hickman, and at other times on a push-car owned by May. In going from the camp to the landing, the push-car was propelled by gravity only, with a two-by-four or other like piece of wood serving as a brake. It was returned to camp by use of a motor speeder. Mrs. Varley and her purchases were generally brought to the camp from Glenwood by employees of the defendant corporation.

May was "bull cook" at the Converse & Hickman camp. His duties were "to take care of the bunk-houses, make beds, sweep floors, get in the wood for the bunk-houses, get in the wood for the cook-house" and to "haul the supplies in when" convenient. He also transported Mrs. Varley and the employees of Converse & Hickman between that company's camp and the landing, either on the speeder or the push-car or both. On October 18, 1940, at the time of the accident involved herein, May was carrying out camp laundry as well as transporting Mrs. Varley.

At about nine-thirty o'clock in the morning of that day, Mrs. Varley left the camp with May and Nels Johnson, on May's push-car. When they were about half-way to Vanderjack's landing, and proceeding at the rate of four or five miles an hour, they were overtaken by a push-car loaded with rock and dirt, which was traveling down the incline at a speed estimated at from fifty to seventy miles an hour. In the collision Mrs. Varley suffered severe injuries.

A section crew employed by the defendant corporation had been using the latter push-car and left it standing on the tracks about a quarter of a mile above the Converse & Hickman camp and approximately a mile above the place of collision, without putting out a torpedo, posting a signalman or taking other precautions to warn approaching trains and other rolling equipment of the presence of the push-car on the tracks. A logging train on its way down to the Converse & Hickman camp unexpectedly ran into the push-car, causing it to roll down the tracks, wholly out of control, until it collided with May's push-car.

The logging camp of Converse & Hickman commenced operating on or about June 20, 1940. From that time until the day she was injured Mrs. Varley was in charge of the cook-house at the camp. May also began working there at the same time as did Mrs. Varley.

A speeder furnished by the defendant corporation was used for transporting employees and supplies for the Converse & Hickman camp at the beginning of its operations. Shortly thereafter May purchased a push-car, and a week or two later Converse & Hickman purchased a speeder. During every working day May made a trip to and from the landing,...