Welter v. M & M Woodworking Co.
| Decision Date | 29 April 1959 |
| Citation | 338 P.2d 651,216 Or. 266 |
| Parties | Betty WELTER, as administratrix of the estate of Earl P. Welter, deceased, Respondent, v. M & M WOODWORKING COMPANY, an Oregon corporation, Appellant. |
| Court | Oregon Supreme Court |
Geo. A. Rhoten, Salem, for appellant. With him on the brief were Rhoten, Rhoten & Speerstra, Salem, and Philip A. Levin, Portland.
George H. Fraser, Portland, for respondent. With him on the brief were Hart, Spencer, McCulloch, Rockwood & Davies and Nathan J. Heath, Portland, and Jos. M. Devers, Salem.
Before PERRY, C. J., * and LUSK, WARNER and SLOAN, JJ.
This is an appeal from a judgment for the plaintiff in an action to recover damages for death by wrongful act.
The decedent, Earl P. Welter, was a member of a partnership doing business under the name of Fern Ridge Logging Company which had entered into a 'Re-Logging Agreement' with the defendant, M & M Woodworking Company, an Oregon corporation, to fell, buck, yard and load certain standing timber in Linn County, Oregon, which M & M was purchasing under a contract of sale with the State of Oregon Board of Forestry, and transport the logs to log ponds near Albany, Oregon. This contract was executed by the Scordrite Company, a subsidiary of M & M, for and on behalf of the latter, and was subsequently assigned by the Scordrite Company to M & M. The contract required the purchaser to complete the construction of a road in the timber, designated as Road No. 1, in accordance with the specifications therein stipulated. This work was done by a sub-contractor under an agreement with the Scordrite Company. It is conceded that the latter was acting as agent for M & M. Fern Ridge's contract with M & M gave the former a non-exclusive right to use M & M's roads in the area. In consideration of such right Fern Ridge agreed to pay to M & M 'the same proportion of the total cost of maintaining such road as the quantity of logs transported over such road by * * * [Fern Ridge] during any given period of time bears to the quantity of all logs thus transported.'
Earl P. Welter met his death incidentally to the performance of the re-logging contract, on November 17, 1953, when he was operating a vehicle known as a Skagit SJ-8 Mobile Logger (hereinafter for convenience referred to as the 'Logger') over Road No. 1. The plaintiff claims that, due to the negligence of the defendant in the construction of the road, it gave way under the weight of the machine, which rolled over on its side and down a steep embankment and pinned Welter beneath it. The specific charges of negligence (aside from several which were withdrawn by the court) are that the defendant failed:
'1. * * * to provide said roadway with a sufficiently wide base for new fill material considering the circumstances and the type of road material used to form and be said roadway;
'2. * * * to use proper types of rock and fill materials used to form and be said roadway;
'3. * * * to construct drainage fields or culverts or any other drainage device.
'4. * * * to make a proper, usual or any inspection of said roadway.'
At the conclusion of the testimony, the defendant moved for a directed verdict on the ground that there was no proof of negligence which proximately caused the death of the decedent, and further moved separately that each of the charges of negligence above set out be withdrawn from the consideration of the jury. Adverse rulings on these motions are the subjects of the first five assignments of error.
These assignments, which will be considered together, call for a statement of the evidence and the applicable rule of law.
The Logger is a self-propelled piece of equipment used in yarding and loading logs. It weighed 63,000 pounds and measured 8 feet 9 inches in width between the tires. It was operated from a cab in the rear. At the time of the accident, the work of the partnership under their contract with the defendant had been completed and the decedent was moving the Logger out of the woods to take it to the town of Stayton, Oregon. The accident occurred in a fill area. At the narrowest point, the top of the road in this area was between 12 and 13 feet in width. Frank Welter, a brother of the decedent and an employee of the partnership was an eye-witness to the accident. Immediately before, he had assisted the decedent in removing the boom from the Logger and loading it on a truck. He remained behind while the Logger proceeded down the road and saw the accident from a distance of about 150 to 200 feet. He described what he saw in this language.
'Well, the thing was driving down the road ahead of me and I noticed that his wheel was, on the left, was pulled over a little but the other wheel was in the main travel track, the right-hand wheel, and then it stopped, and as it stopped, why, it settled down and just then, why, he turned back and looked back at me and just as much as to say we are stuck, we are going to have to get this thing pulled out, and about that time the whole thing just give way and over it went.'
The rear of the Logger was equipped with dual wheels. The witness testified that the right hand wheels were in the welltraveled track on that side and the left hand wheels about 12 inches 'over the edge' of the track on the left hand side, that the inner dual was in the track but the outer was not. There was evidence that after the accident at the point where it occurred an area in the road about four feet long was depressed about 18 inches.
The evidence as to the construction of the road may be summarized as follows:
At the point of the accident the road was super-imposed on an old railroad right-of-way and, as stated, this was a fill area. The top of the railroad grade, referred to as the sub-grade, prior to surfacing was 14 to 15 feet in width. On top of the railroad grade was placed as surfacing what is referred to as 'pit-run' material approximately 12 to 18 inches in depth, making a road 12 to 13 feet wide. The expression 'pit-run material' was explained as meaning an alluvial deposit or glacial till, consisting of round river rocks up to 12 inches or more in diameter and sand, gravel and silt. Such material is inferior to other types of road material in respect of its cohesive qualities. The same material was used on the embankment and, while it is commonly so used, it was not a suitable material at the particular site because of other factors, mainly the presence of water and the degree of the slope. The base of the road was not wide enough considering the type of material used, the degree of slope of the bank, and the drainage facilities, to support a surface at the top 12 to 13 feet in width.
There was evidence that, owing to the conditions on the East side of the fill, water percolated through the embankment with resulting impairment of the strength and stability of the road. To the East of the road was a hill which sloped from East to West and an active spring, the waters of which were discharged in the direction of the fill. Surface waters drained down the hillside in the same direction. A culvert had been placed through the road to carry off the flow of the spring. On the North side of the culvert there was a dike, or dam, which retained the water from the spring and channeled it through the culvert, and just beyond the dike to the North, and exactly opposite the point of the accident, was a 'borrow pit' or depression. Surface waters drained into the depression and were collected there. Because the depression was below the flow line of the culvert and because of the dike between the culvert and the depression, these waters could not drain through the culvert, and, having no other way of escape, found their way into the embankment and percolated through it. An expert witness for the plaintiff testified that the facilities for handling the flow of the water were totally inadequate, and that a culvert should have been installed at the point to take care of it.
As to the allegation that the defendant failed to inspect the road, it appears from the testimony of Donald Sheythe that he had complete charge of the road as representative of M & M, subject to his superiors. William Gray, District Manager, had supervision of the road with respect to maintenance and inspection. Sheythe was asked whether Gray ever delegated inspection and maintenance problems to him and answered, In response to the question whether he ever had occasion to inspect the area where the accident occurred prior to its occurrence, he said that he had been over the fill area a number of times on foot, but that he had never gone down the bank on the East side to see whether there 'was any expanding water after rain' there, and that 'one could see from the roadway.' There was other testimony, however, which indicated that the condition described with respect to water accumulating at the foot of the East embankment and entering the embankment and percolating through it could not be ascertained without going down the embankment and observing it on both sides.
While not conceding that the evidence would be in any circumstances sufficient to make a prima facie case of negligence, the main reliance of the defendant is on the proposition that the road was constructed in full and exact compliance with the defendant's contract with the state, and, therefore, that the defendant violated no duty it owed to the decedent.
The contention is thus stated in defendant brief:
'A contractor is not guilty of negligence in following the plans and specifications for the work unless they are so obviously defective as to put a reasonable contractor upon notice of the danger inherent in proceeding in accordance with them.'
A number of cases are cited in support of the foregoing proposition. In some it appeared that the work had been accepted and turned over to the...
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