Waterway Terminals Co. v. P. S. Lord Mechanical Contractors
| Decision Date | 11 September 1970 |
| Citation | 474 P.2d 309,256 Or. 361,91 Or.Adv.Sh. 7 |
| Parties | WATERWAY TERMINALS COMPANY, a corporation, Respondent, v. P. S. LORD MECHANICAL CONTRACTORS, a corporation, Mechanical Handling Systems, Inc., a corporation, and Colby Steel & Manufacturing, Inc., a corporation, Appellants. |
| Court | Oregon Supreme Court |
George M. Joseph, Portland, argued the cause for appellants. With him on the briefs were Morrison & Bailey, William H. Morrison, Thomas S. Moore, Mautz, Souther, Spaulding, Kinsey & Williamson, Bruce Spaulding, and Ridgway K. Foley, Jr., Portland.
Darrell L. Johnson, Portland, argued the cause for respondent. With him on the brief were Bullivant, Wright, Johnson, Pendergrass & Hoffman, R. R. Bullivant, and Douglas G. Houser, Portland.
Before PERRY, * C.J., and McALLISTER, SLOAN, O'CONNELL, DENECKE, and HOLMAN, JJ.
This case concerns an action to recover damages caused by fire. Plaintiff secured a judgment based upon both a general and a special jury verdict against all defendants jointly and severally in the sum of $206,408.85 and against the defendant P. S. Lord Mechanical Contractors (Lord) for an additional sum of $145,814.57. This case was previously before this court as the result of a prior trial and appeal. See Waterway Terminals Co. v. P. S. Lord, 242 Or. 1, 406 P.2d 556, 13 A.L.R.3d 1 (1965).
Plaintiff was in the process of building a large dock and warehouse in the city of Portland on the west side of the Willamette river. The installations were primarily for the automated handling of water cargo from water level to warehouse. Plaintiff entered into a contract with Mechanical Handling Sytems, Inc., (MHS) to supply and install all mechanical portions of the system. MHS, in turn, subcontracted the furnishing and installation of six cargo lifts in the dock, by which materials from barges at river level would be raised to the level of the dock, to Colby Steel and Manufacturing, Inc. (Colby). Colby subcontracted the installation of the lifts to Lord.
On September 11, 1958, Lord was in the process of extending the already installed channel guides for the lift in cargo well No. 4. This necessitated welding teninch pieces of channel guide onto the top of the existing guides with an electric arc welder in both inshore corners of the well so that the guides would reach the level of the dock. The lift platform was lowered to about three feet below the dock level, and two of Lord's workmen, a welder and a helper who was acting as fire watch, stood on the platform while doing the welding. The existing channel guides were bolted to vertical timbers. The workmen first completed the weld on the guide in the southwest corner of the lift well. In order to protect the timber to which the guide was attached, a piece of sheet metal had been inserted during the welding between the guide and the timber. The sheet metal shield had fused to the channel guide during the welding and the balance of the shield was cut away with the welding torch upon completion of the weld. This created molten slag which, along with sparks from the welding, fell through the open space at the side of the lift well between the level of the dock and the lift platform. The dock was supported by creosote-impregnated pilings and timbers.
After completing the extension of the guide at the southwest corner of the cargo well, the welder moved over to perform the same operation on the guide at the northwest corner of the well. During this time the helper went down the dock to find another piece of sheet metal for a shield. Some twenty minutes later, at about the time the helper returned and the welding on the other guide was commenced, smoke was discovered coming up from below and along the side of the lift platform at its southwest corner. Despite efforts to quell the blaze, this fire ultimately did the damage for which recompense is being sought in this case.
The court submitted to the jury certain claims of contributory negligence against the plaintiff, such as failure to have a sprinkler system in use at the time of the fire, failure to warn that the sprinkler system which was installed was not operative, and failing to have fire doors or other ready access to the part of the structure where the fire commenced. In submitting these claims of contributory negligence to the jury and in instructing on contributory negligence generally, the court at numerous times instructed that in order to bar recovery by plaintiff, the negligence must be the proximate Cause of the fire, rather than instructing that it must be the Cause of the damage. Also, several of defendants' requested instructions concerning contributory negligence were not given which spoke in terms of cause of the damage. Defendants contend that the result was to instruct them out of court insofar as their claims of contributory negligence were concerned, because it is obvious that lack of an effective sprinkler system, or of fire doors or warnings cannot cause a fire.
The validity of defendants' contention depends upon whether or not the jury would likely have understood that the term 'cause of the fire' meant what caused the fire to start rather than what caused it to spread and consume part of the dock. We believe that the jury would have understood that what was being referred to was what caused the total conflagration which inflicted the damage. In the first place, as defendants point out, it is obvious that lack of a sprinkler system or of fire doors cannot start a fire. The fact that such allegations of contributory negligence were submitted to the jury negates any inference that the court was referring to what caused the initiation of the fire.
Also, other parts of the court's instructions were consistent with the idea that what was being referred to was the cause of the destruction of the dock. In instructing on proximate cause, the court said as follows:
'The phrase 'proximate cause' as used in these instructions means probable cause, direct cause. It is such a cause which in a natural and continuous sequence, unbroken by any other or new cause, would probably Lead to injury, and which has been shown to you to have Led to injury, and Without which the results would not have occurred. In other words, proximate cause is a cause Which leads directly to the situation complained of, without the interference of any other or new cause.
'You will disregard any negligence which you may find as alleged in this case, unless such negligence was a proximate cause of the damage or injury.' (Emphasis ours.)
In addition, the court, in referring to plaintiff's contentions in its complaint, stated:
'In this case the plaintiff brings this action against these defendants, claiming and alleging that these defendants were negligent in certain particulars, as alleged in the plaintiff's complaint, And that such negligence, as alleged, was a proximate cause of plaintiff's damage as set forth in the complaint.' (Emphasis ours.)
Admittedly, the plaintiff in its argument to the jury strenuously argued that lack of a fire door or of a sprinkling system could not start a fire, but his argument went unchallenged. Plaintiff had previously attempted to get the court to remove the allegations of contributory negligence from the case upon the ground that the things of which defendants complained in their allegations could not start a fire, and the court denied the request.
Defendants next contend that the court erred in giving a res ipsa loquitur instruction. Not only do they contend that it should not have been given, they contend the instruction given was erroneous in any event. Defendants first call to the court's attention that in order for res ipsa to apply, the injury must be one that does not ordinarily happen if those having control exercise due care. They contend that such an instruction was not applicable because the following testimony by defendants' expert witness concerning welding demonstrated that fires are caused by welding even when all possible precautions are taken. The testimony of the witness was as follows:
'
In making this contention, defendants are taking an opposite position from that which they took in relation to the court's instructions on the 'cause of the fire' which have previously been considered in this opinion. Here they are contending that the emphasis should be on the start of the fire rather than on the total conflagration which enveloped the dock. They say that res ipsa is not applicable because fires are started even when proper precautions are used. The answer to defendants' contention is that the thing under consideration is the uncontrolled conflagration that caused the damage. As the witness indicated, welding starts fires so easily that they have to be tightly policed and a live hose is necessary. Such fires do not usually get out of control and cause damage unless the welders fail to take proper precautions.
In addition, defendants contend that if it be shown that the injury was due to plaintiff's own fault or omission, res ipsa cannot be used as a basis for an inference of negligence. We need not consider this contention because no exception was taken to the court's instructions on this basis.
Defendants also took exception on several bases to the res ipsa instruction which was given. The instruction was as follows:
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