Yin Sang Shum v. Venell

• Jurisdiction: Oregon
• Parties: YIN SANG SHUM, Appellant, v. Clarence VENELL, Respondent, James Arnold Taylor, Jr., Defendant. . *
• Citation: Yin Sang Shum v. Venell, 539 P.2d 1085, 273 Or. 143 (Or. 1975)
• Court: Oregon Supreme Court
• Decision Date: 18 September 1975

Page 1085

539 P.2d 1085

273 Or. 143

YIN SANG SHUM, Appellant, v. Clarence VENELL, Respondent, James Arnold Taylor, Jr., Defendant.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted July 9, 1975.

Decided Sept. 18, 1975.

S. David Eves, Ringo, Walton & Eves, Corvallis, argued the cause and filed a brief for appellant.

James C. Tait, Hibbard, Caldwell, Canning, Bowerman & Schultz, Oregon City, argued the cause and filed a brief for respondent.

O'CONNELL, Chief Justice.

This is an action to recover damages for personal injuries suffered by plaintiff when his automobile and the automobile of defendant Taylor collided in a dense cloud or plume of smoke which settled on the highway as a result of field burning by defendant Venell. Plaintiff charged defendant Taylor with negligence in the operation of his automobile and charged defendant Venell with negligence in failing to post signs or other warning devices indicating dense smoke for approaching traffic.

The facts are not in dispute. On September 5, 1972, plaintiff collected air samples in an area of field burning south of Corvallis, Oregon. While returning to Corvallis, through a smoky area, he suddenly came upon a ball or plume of particularly dense smoke, which prompted him to slow and then stop his vehicle on the roadway. Defendant Taylor was driving at approximately 75 miles an hour in the same direction as plaintiff. He began to slow his car when he first saw plaintiff enter the cloud of smoke one-quarter to one-half mile ahead of him. When he saw plaintiff disappear into the dense plume about 200 yards ahead, Taylor tried to slow down but was unable to do so sufficiently to avoid striking the rear of plaintiff's car.

The smoke had come from the burning of defendant Venell's field adjacent to the road. Venell had a burning permit from the Philomath Fire Department and had checked the wind direction prior to igniting his field to prevent crop disease. After the fire began, the wind shifted sending smoke across the road. Because the fire could not be stopped at that point without making the smoke thicker, it was allowed to continue burning. The accident occurred about five minutes after the change in wind direction.

On defendant's motion, the trial court struck plaintiff's allegation that defendant Venell was negligent 'in failing to post signs or other warning devices indicating dense smoke' for approaching traffic. Plaintiff contends that this constitutes reversible error.

The question is whether a farmer, burning field grass adjacent to a highway, has a duty to post signs or other warning devices to inform motorists who are aware of the existence of smoke on the highway that Dense smoke is ahead. ¹ From a practical standpoint if such a duty were imposed, it would require every farmer burning his field to post such a warning because he could never know in advance whether the smoke would pass over the highway in a dispersed or concentrated form. The imposition of such a stringent duty might well be justified if the failure to warn could be regarded as a substantial factor in alerting motorists of the danger which lay ahead of them. But we agree with the trial judge that warning devices would not have this significance where the approaching motorist has knowledge that smoke has drifted upon the highway ahead of him. In those circumstances, the motorist is warned that danger lies ahead and that it may be great or small, depending upon the density of the smoke on the highway. To impose upon the defendant a duty to warn the plaintiff of that which he will himself discern would place an unnecessary burden upon the defendant. Stated in another way, under the circumstances we have before us, the failure to post warnings cannot be considered a causal factor contributing to plaintiff's harm. ²

Judgment affirmed.

TONGUE, Justice (dissenting).

The majority, in a short opinion which fails to mention a number of important facts and to cite any legal authority to support the rule adopted by it, would establish a new and important precedent in Oregon to the effect that a farmer, logger, highway contractor, railroad or industrial plant conducting operations on land adjacent to a highway, causing clouds of dense smoke to blow over the highway, owes no duty to warn an approaching motorist of the hazard when the motorist 'has knowledge that smoke has drifted upon the highway ahead of him' and that the danger 'may be great or small, depending upon the density of the smoke on the highway.' The majority also holds that in such a case the failure to warn 'cannot be considered a causal factor contributing to plaintiff's harm.'

With all due respect to the majority, I am of the opinion that such a holding is contrary to established rules of law, as applied in 'smoke' cases decided by other courts, and that such a rule also has no proper application in this case because of important facts which the majority does not mention.

The facts.

1. Defendant knew that smoke might blow over the highway.

The majority holds that 'from a practical standpoint' a farmer engaged in field burning adjacent to a public highway should not be required to warn approaching motorists of the dense smoke resulting from such an operation and that to impose such a duty would be 'an unnecessary burden' because the farmer 'could never know in advance whether the smoke would pass over the highway in a dispersed or concentrated form.' The majority also holds that in this case the farmer had 'checked the wind direction prior to igniting his field' and that 'after the fire began, the wind shifted sending smoke across the road.'

According to the record, the highway adjacent to defendant's field ran in a northerly and southerly direction and the field being burned was a 40-acre tract of rye grass which extended along and adjacent to that highway for a distance of over one-fourth mile. The burning operation required approximately one hour.

Defendant Venell was a farmer with considerable experience in field burning operations. His wife, who actively participated with him in field burning operations, testified that although the wind was blowing from the north when the fire was started, it is common in the late afternoons in the late summer in that area for the wind to blow from the west; that it was reasonable to expect that the wind would be variable and might shift without warning; and that 'that's why we have all the fire fighting equipment.'

An independent witness who observed the lighting of the fire testified that at that time the wind was blowing 'in the easterly direction' and 'across' the highway and that this was from 20 to 30 minutes prior to the accident. There was also other testimony that the winds on that day were 'quite variable' and that during the operation the wind was blowing from the northwest to the southeast, across the road.

Thus, contrary to the majority, there was evidence from which the jury could have found that defendant Venell knew in advance that the wind might well blow smoke from the field burning operation across the adjacent highway in either 'dispersed or concentrated form.'

2. Defendant Venell had ample opportunity to give warnings to approaching motorists.

From the majority opinion it would appear that because of a sudden shift in the wind defendant Venell had no opportunity to warn approaching motorists of the danger of dense smoke blowing over the adjacent highway. This is in accord with defendants' contention that they were 'absolved' because of a 'lack of opportunity to take precautions.' There was ample evidence from which the jury could find to the contrary.

First, because there was evidence that defendant knew before starting the fire that the wind was either already blowing 'in an easterly direction' or might shift and blow smoke across the adjacent highway defendant had ample opportunity at that time to post men on the highway well to the north and south of the two ends of the field to stop or otherwise warn approaching cars in the event that dense smoke should blow over the highway. ¹ Indeed, defendant Venell had already given a warning to the owners of the adjacent property before undertaking to burn the field, in accordance with 'normal practice.'

Secondly, it appears from the evidence that although defendant Venell usually had seven 'rigs' of fire or 'safety' equipment when he burned a field, he had nine such 'rigs' on this occasion. The operator of one of these 'rigs,' with radio communications (apparently by 'walkie-talkie'), was parked near the south end of the field adjacent to the highway with instructions to watch the fire. He notified the 'crew' by radio five or ten minutes after the fire was lit that smoke was blowing over the road. Despite that fact, he was given no instructions to flag or otherwise warn traffic approaching from the south. As a result, he continued to sit in his truck until he observed the happening of the accident some five minutes later, at which time he immediately 'notified people in the field' by radio.

The operator of another 'rig,' also a member of the 'fire fighting crew,' had been stationed to patrol the edge of the field adjacent to the highway and After the accident happened he was notified by radio and Then 'went out and started stopping traffic on the highway at the north end of the field.' Defendant Venell himself testified that when he learned that smoke was blowing across the road 'at that point it didn't seem like it warranted any flagging, the smoke wasn't dense.'

From these facts the jury could have properly found that the 'flagging' or otherwise warning of approaching traffic was 'warranted,' at least when the smoke began to blow across the highway, and that defendant Venell not only knew when he started the fire that smoke might do so but had ample opportunity to assign a man near each end of the field to stop or warn approaching traffic in that event--if not before starting this...