*1 En 35586. Banc. November 1962.] [No. Appellant, Administratrix, The National Albin,
Bessie Respondents. al., et Bank of Commerce Seattle Appellant, Larry National Bank Com Albin, v. The al., et merce Seattle Respondents.* *Reported in P.
Peterson & Ivan Taylor Merrick, for appellants. Vaughn Hubbard, for respondent National Bank of Com- merce of Seattle.
Dean W. Loney Loney, Westland & Koontz, for re- spondent Braden. respondent
Minnick, Tuttle, Hahner & Columbia County. through proceeding along J. A car a road
Hell, heavily-wooded, during area, windstorm mountainous falling disрuted struck force, tree.1 during remote winter, and closed snow extensively during used elk hunt- somewhat the deer and ing occupant son, season. One of the car was killed and his driving seriously minor, then a car, who was in- jured. wrongful
An action to recover for the death of the father injuries and the action for the son’s were consolidated for being: trial; the basic issues (1) permitting
A. The Columbia proximity (2) the tree to stand road; to its the National Bank of Commercе of Seattle, as trustee, owner of (hereinafter on which the tree stood referred to *3 “Bank”); (3) alleged as the and Clarence Braden, to be the having signed Agree- owner of the tree —he a “Timber Sale whereby purchased ment” the timber of sizes, certain agreed thereby on which the tree stood, and years. all remove such timber within five availability (1) contributory The B. of the defenses of negligence, (2) injuria. and volenti non fit County
Columbia was dismissed from the action court, trial and there a verdict favor of the judgment other two A defendants. of dismissal was en- tered on the verdict. appeal; plaintiffs and, in addition to the basic issues assignments referred, which we have make numerous
claimed trial errors.
We will consider first the dismissal of Columbia county from the action the trial court. A is (a Fir) top 1The of the tree previously, White had been broken off just approximately the accident height and before 95 feet in fell, 43 fеet from the center of stood some the road. When it it broke ground stump height. off feet above the and left a 25 of 748 reasonably
obligated keep condition roads in a safe its (1959), Spokane Cy. ordinary 53 v. travel. McDonald Cy. (2d) (2d) 127; Simmons v. Cowlitz 685, 336 P. Wn. Spo (2d) Berglund (1941), (2d) 479; v. 84, 12 120 P. Wn. (1940), (2d) (2d) Cy. 355; Fritch 309, 4 103 P. kane Wn. (2d) Dignan (1940), King Cy. v. 249; 87, 102 4 P. v. Wn. (1906), Spokane Cy. 419, Pac. 649. 43 Wash. 86 predicated county’s liability A the users of its roads having upon constructive, of the notice, either actual or its danger injury, dangerous condition which caused unless guarded against. Mc have foreseen and was one it should supra; (1951), Spokane Cy., Russell v. Donald v. Grandview Auburn 551, 1061; 236 P. Holland v. Wn. King Cy. Blankenship (1931), 769; 594,297Pac. v. 161Wash. (N.S.) (1912), 616, 122 Pac. R. 40 L. A. 68 Wash. vary notice will will constitute constructive What Cy. place, circumstance. Mead v. Chelan time, with Noyes (1888), 825; Pac. 97, 191 Gardner Wash. Am. 18 E. L. R. A. 354. See also 25 N. Mass. supra, p. court, Highways § 445, Mead, 737. In Jur., speaking case, in this said such a as we have 100): (p. “ It borne in mind that this was a some- . . is to be . serving and, families, mountain road but few remote
whаt things, the commissioners could not be re- nature of in the frequent inspection, give quired or even of the road or those but it constant living might, rely upon in the the users any give neighborhood them notice of unusual conditions the road unsafe. ...” render no had actual
There is no evidence dangerous any fell more than tree which tice that *4 any line our mountain of trees which of the thousands one from notice which constructive no circumstances roads, and might course, can, of be foreseen that trees inferred. It be cutting roads; but short of a tree-lined fall across will having through areas, a width on each side wooded swath equivalent height portion the road to the of the traveled of highway, adjacent to the we know of trees the tallest of danger. At way safeguarding the foreseeable no practicable nor desirable. the time this is neither comparison unreasonable, in be financial burden would (1930), 44 F. v. Whelen with the involved. Chambers risk 611; 72 L. R. Zacharias Nesbitt A. Minn. N. 19 A. R. 1016. 185 W. L. dismissing
The trial err in Columbia court did not from the consolidated actions. the of Clarence turn next to a
We consideration theory party on Braden, was made a defendant who Agreement” by that “Timber with virtue Sale August tree of the bank, 4, 1958, dated he was owner fell. undisputed logging. It did not do the Braden any land, He had not at time never seen this tract did any logging operation, had exercise cоntrol over right logged by no to exercise control. The such tract Lyons, logging John contractor hired the real owner Company, i.e.} EML timber, Inc., Lumber an Oregon Lyons twenty-six corporation. from EML received twenty-seven per dollars thousand board feet delivered picture EML at the mill. came into he Braden because loaning sixty-five buy EML hundred dollars timber on tract owned the bank— merchantable being unwilling money loan the commercial banks purрose. given mortgage Braden chattel the EML mill on property, title merchantable timber was taken solely security. as a matter of his name logs by Lyons, mill as the were delivered at the
As soon willing to make loan EML on a commercial bank was proceeds paid of that loan them, and from Braden was sixty-five September 15,1958. hundred dollars There- his in the land or the after had no interest timber. The logging operations 14, 1958, while tree fell on October oрerations continuing, still had been were locality. beyond particular moved have The case should never been submitted *5 liability on the Braden, issue of the of Clarence inasmuch legal anything as he never had but the bare title security purposes. merchantable timber for plaintiffs go jury, Whether the entitled were to to property the bank as the owner of the on which majority stood, the tree is not from free doubt. A opinion court are of thе owner’s jury question. duty,
There is a marked distinction between the ref- with may imposed upon trees, erence to be owners adjacent city heavily highways land to streets or traveled imposed adjacent and those owners forest lands to little-used roads. very emphasizing
A case, recent these distinctions, (1960), opin- O’Brien v. F. United States 696. The points disagree- ion out courts and commentators are in whether, ment as to as a matter of rural law, a landowner duty inspect should be saddled with a to the natural condi- highway.2 public tions of land near a his court said (p. 698):
“. . . Where rural is concerned, the differ- ing duty inspect conflicting conclusions as to a to reflect proper notions as balance be drawn between un- burdening duly duty the landowner with a to undertake costly protecting affirmative action travelers on the public highway injury from caused conditions over ” they . have no control. . . you рass merely But when from the rural remote and through though few, lands, cases, forest little-used roads duty inspect. seem there to be unanimous that is no supra; (Ky. States, O’Brien United Lemon v. Edwards 1961), In 344 W. 822. case S. O’Brien the trial 697): (p. court had said Noel, Condition,” (1943), 2Pro: “Nuisances from Land its Natural 56 Harv. L. Rev. 789. also, (1931); See 29 Mich. L. Rev. 1098 Sugar Honomu Co. Medeiros v. Hawaii 155. supra; Nesbitt, Whelen, supra; Anti: Zacharias v. Chambers v. Pros-
ser, (2d ed.) p. Law of Torts “ Oregon courts . It is that the ‘. unthinkable . adjacent little- impose upon lands, of forest the owners duty inspect- sparsely-settled areas, the roads used likely natural- to fall because are and remove trees which decay.
. . 823): (p. In court Lemon, the said *6 respect lands ad- to forest “We that at least with think sparsely jacent there is roads in settled areas to little-used duty imposing upon for not the landowner a sound basis of through proc- inspection whether, natural to determine dangerous decay, become оn the land have esses trees duty would be' the The basis is that such to users of an road. comparison risk in-' with the unreasonable burden volved. along densely “In the the road the instant case land was question among other trees wooded. The tree stood roadway. not re- feet the The owner did some fifteen side on the off only tract the that evidence showed had year. perhaps four or times a There traveled the road five by persons оccupying than was little use of the road other camps the think the owner did at the lakeshore. Under these circumstances we inspection. duty not the have There knowledge danger- no he had evidence that actual of the ous of the tree.” condition argues persuasively
The bank these cases having govern present the that, should situation and no- knowledge dangerous the actual condition tree, of the it have been from thе However, should dismissed action. governed it is our view that the case should not be by Lemon O’Brien and cases because of certain circum distinctive. stances deemed to be extensively by
The remote, was used hunt- during important, season; and, ers the deer and elk more on Which the tree land, stood was not forest recently state, but land in its natural which had been jury question logged. deem it to be a We as to whether- notice of the the bank had constructive hazardous condition operation, by logging caused involved further question any duty jury there was whether on the bank its-property as to the informed itself status which to have along being logging operation. the road was left While no one who had seen this tree before it it fell testified that regarded testimony hazardous, as there was that if “good loggers had been timber” have taken it. theory plaintiffs, It basic of the as stated loggers counsel, that when the protective “. . . cut down the timber around from snag snags adjacent they
this increased and the other the road, hazard. ...” properly The trial court concluded was no there duty inspect liability no so far owner as the (absent knowledge condition), concerned of a hazardous so long forest remained condition; in its natural any, predicated owner, if must be dangerous land, condition created on its as a result of logging operation, of which the owner knew or should have presented theory. known; and the case on that We no error find trial court’s instructions as liability. jury brought basis of the bank’s in a verdict *7 may bank, the and it well have concluded that bank had no actual or constructive notice of the hazardous logging operation. condition created The verdict readily basis, could be sustained on that come now we any to a of whether consideration there wаs trial error necessary a which makes trial so far the bank is new as concerned. go
Our determination that there was no case to to the jury, far as Braden was concerned, so eliminates the neces- sity considering relating of claimed trial errors3 to the requested case him and to on instructions con- curring negligence. instructions, are satisfied that
We relative to contributory negligence, properly given; were and that it question оrdinarily prudent was a whether and cau- question deposition, 3With raised relative to reference the Braden n counselare referred to Vannoy Light (1962), Power & Co. Pacific subsequent (2d) 623, 625, 59 Wn. P. decided to the -writing case. of the briefs in this driving persons road tious have been existing fell. under the at the time tree conditions theory plaintiffs’ The trial court’s refusal to instruct on the negligence, Supporting proper. nuisance, of well as theory, plaintiffs cita сontent themselves with a Oak tion of 7.48.1204and case of Bruskland v. RCW (1953), Theater, Inc. 254 P. Wn. application
The Bruskland case no has being clearly situation, it a no element nuisance case with negligence of involved. If liable under the bank is “nuisance” statute, is because there has been an omission perform duty,” dangerous remedy i.e., “to cre situation logging operations ated of or should which it had knowledge. have had This same omission which negligencе. would constitute Justice made As Mr. Cardozo City Niagara in clear McFarlane v. Falls 340, 160 N. Y. N. E. 57 A. R. 1: Whenever L. a nuisance origin negligence, contributory neg has its in the defense of ligence cannot be cut off. proposed plaintiffs’ instructions demonstrate that the
only purpose attempting put in the “nuisance” label on deprive action, this was to defendants their defense negligence. contributory injuria5 The instruction relative to volenti non fit should 4RCW “nuisance” 7.48.120 defines as follows: “Nuisance consists unlawfully doing act, omitting perform duty, an or which act or injures annoys, endangers comfort, repose, omission either or health safety others, decency, unlawfully or with, offends or interferes ob obstruct, dangerous passage, any structs or tends to or render lake navigable river, bay, stream, any basin, public or park, canal or or square, highway; any way persons or or street renders other insecure property.” life, or the use of *8 given 5The instruction was as follows: knowing danger comprehending voluntarily exposes “If one and negligent doing himself it not in so he is deemed to have precluded recovery injury assumed the risk and is ing from a for an result- predicated upon theory knowledge therefrom. This rule is the danger appreciation voluntary and the Therefore, assent thereto. apply plaintiffs you before this defense can to the here must find: plaintiffs appreciated danger “1. That the knew of and the risk or might involved, that is a dead tree fall on them. voluntarily plaintiffs expose “2. That consented to themselves to being given, complete of evi- there lack riot have been Larry plaintiff, Albin, or his father dence that either the danger pro- appreciated the killed, was knew of and who along county ceeding as done. the road was correctly stated
The trial court’s instruction emphasized evidence that rule and there must be that danger plaintiffs appreciated in risk or knew of and controlling. There was volved, and that their state of mind argued jury being evidence, it that no such could be giving However, not influenced this instruction. jury that the court must of the indicates instruction thought issue; there some evidence have consistently prejudicial is have the rule that it we followed jury is no when there sub error to submit an issue (1961), concеrning Reynolds v. Phare it. stantial evidence (2d) v. Peters 904, 905, 328; 365 P. White 58 Wn. 827, 329 P. 52 Wn. given in not have been this Instruction No. 156 should extensively quoted the authorities have case. We somewhat law, if is limited which sustain that statement not in their natural It is lands state. forests or timber appropriate concerned in the case we are where county (adjacent duty to the land with the owner of duty road) recently logged. to make Whether has but logging operations, inspection during after we hold or some question. to be a not comment on the evidence need be dis-
The claimed being granted grounds. on other cussed, a new trial is ‘voluntarily’ regard danger and this the word means that such alternative, and, plaintiff or a reasonable election had unreasonable, exposure is that a reasonable “3. That position expose danger; person plaintiffs’ not himself would along Sky plaintiffs have not his car Line Drive driven question. day аnd hour on the inquiries instructed that in the first two of these further “You are controlling plaintiffs’ and there of mind must be evidence state (Instruction 14) you state of mind.” No. the case of such before of rural timber instructed that owners mountain land 6“You are duty inspect bordering under no or road are for dead (Instruction 15) decayed No. trees.”
755 judgment against defendants, of dismissal Colum- Braden, affirmed; is bia and Clarence is a new trial granted against Seattle, the National Bank of Commerce of Fanny as trustee under the E. Weller Trust Fund. JJ., concur. Hamilton,
Donworth, Weaver, Ott, (concurring part, dissenting part) in J. in —While Foster, agree appellants I that the trial are entitled new respondent agree proper bank, I cannot that it contributory negligence appellant submit the issue of Larry agree Albin and his I deceased father. Nor can properly respondent the case was dismissed as to Co- County. lumbia correctly
The court decides that county obligated keep “A is its roads in a reasonably ordinary safe condition for travel. ...” my contrary public policy In view, is to decide that contributorily negligent using public one is in a dedicated highway. Such was the Galusha, decision Osborne v. during Wash. Pac. 1086. That accident occurred region heavily storm a mountainous which was timbered. Judge Bridges, for the court, said: right think the court “We when informed the stage right that the owner assume hаd that the highway reasonably safe for . travel. . . certainly driving “. . . It cannot be held that one highway, driving carrying even he be a bus passengers looking hire, for must be active out for trees right way might go fall, off of or off of the investigate any road to such trees to determine their char- duty upon any person, upon If acter. rests it is duty authorities whose it is maintain the and not ” upon those who travel it. . . . Neither the state nor the can avoid for upon private рroperty the fall of the tree because it stood abutting highway highway when the tree falls on the under the this conditions shown record. Inabinett v. Department, Highway 117, 12 State S. 196 C. E. 848; S. Messinger State, 183Misc. 51 Y. N. S. agree can I decision of United States
Nor Appeals O’Brien v. United the Ninth Circuit in Court of authority' anything. States, State F. diversity only. cases, is decided state courts Even law by the decisions of the United States courts are bound questions Tomp- *10 Erie of R. Co. v. state law. state courts 114 1188, 817, Ed. 58 Ct. A. L. R. kins, 304 U. S. 82 L. S. decision, state 1487. when there is no authoritative And supra, States, United in O’Brien v. circumstance guess might only at what the state law States courts United p. Estate, 373 In re ante P. be. Stoddard’s under the Federal Tort sued the United States O’Brien 1346(b), provides § 28 U. C. which in Act, Claims S. sub- negligence stance the United States shall be liable according person private to would be liable the law if a Oregon place the accident occurred. law con- where Oregon opinion that there is trolled. The states no case only speculating Consequently, point. court Oregon Supreme Court of would declare the what the as to speculate not here, to But we are left to of that state be. law support owner, after the of an lateral toas by removed, the forest its natural state is be- afforded by v. Mountain Power that is settled Sullivan States cause Supreme 282, P. in which the Co., Ore. Oregon Oregon law to of declared the be as follows: Court argues a rule of law which would “The defendant striking require power companies fell all trees to within great lines would a of their transmission work distance grow hardship a like where trees tall. in state ours feet not consideration the situation us does demand But before possible rule because it will be observed that a of such readily distinguishable from this fire is tree which caused likely adjacent ordinary tree to be found having sapling grown which, It was a lines. transmission by exposed trees, was left other when surrounded prevailing tall the removed supporting high Its trees had been wind. years logging operations previously; by two high Moreover, was installed. tension line fact, before according answer, this tree ‘had been the defendant’s operations ‘likely logging and was greatly weakened’ between to fall.’ Its distance from the wires was somewhere appears being circumstances, it 20 and 50 feet. These finding proper presented basis for us that the evidence the defendant of due care demanded that exercise adjacent wires, another its set tree, should trim this insulate precau- pole tion to support other take some wires, for the of its or adjoining protect from dan- of owners ger. superintendent that the defendant’s the fact have not overlooked We right way inspected of that he tеstified along every passed testi- but even this time he this upon mony ruling the motion favor not its did demand testimony The heard the a directed verdict. they prac- swore was defendant’s wherein witnesses endangered power companies remove trees that tice degree possible to do their it was so. lines wherever diligence practice demanded, and which was which this par- necessary care, was, of due constitute the exercise jury’s tially question for settlement least, a of fact at Negligence on the and Redfield Law verdict: Shearman (6th Ed.), § 53.” Co., Elec. 45 Cal. Gas & Accord: Beresford (2d) Pacific *11 910; Irelan-Yuba Gold 498, 54 A. L. R. 738, 290P. Mining Co., Quartz & Elec. 18 Cal. Co. Gas Pacific 557, 116 P. 611. respondent Columbia can I to the dismissal of
Nor assent pre- County. county under the evidence The of the jury’s question for the determination. There is sented a county, jury and a actual notice to the both evidence of inferring county justified in addition that the be noticе. had constructive velocity at the time and that the wind
There was evidence averaged per question place hour from 30 35 miles per gusts hour that such 50 miles and winds from 40 to with Heavy every expected reduce the winter. forests be could ground velocity the removal of lateral wind, but logging exposure support iso- increases clear-cut snags higher and are velocities, wind when lated trees to highways public standing adjacent a man-made left highways is created. lawful users of such hazard to the require logging operations Safety re- standards logged. snags the merchantable timber is when moval of logged, logging com- had been The and the tract had been prior pleted Three three to the fatal occurrence. weeks question snags standing. The tree in dead trees or were left height only center 43 feet from the feet in and was 95 stood right way. roadway There 23 feet from the and but proof road crews dead. is abundant during logging operations. vicinity A worked in the deputy and knew there in that interval sheriff cut wood question logged the tree the tract had been was dead.
During hunting near season, from far and Nimrods elk. An- Blue because of the are attracted to the Mountains being nually, trapped dispatches in this of hunters news commonplace. There abundant evidence that area are during especially open Skyline trаveled, so Drive is well season for elk. court, laid down the evidence
Under tests by recent of the hazard created actual notice to question jury logging presented for the and not logging completion oper- of extensive court to decide. prior to the accident was a sufficient three weeks ations question on the constructive circumstance test. notice
Appellants entitled a new Columbia are trial County. J., Rosellini, JJ.,
Finley, C. Hunter, concur with Foster, J. rehearing Petition for
December denied.