Opinion
44152.
SUBMITTED JANUARY 8, 1969.
DECIDED JANUARY 14, 1969.
Action for damages. Fulton Superior Court. Before Judge Wood, Emeritus.
Bullock, Yancey Mitchell, Kyle Yancey, for appellant.
Hansell, Post, Brandon Dorsey, Hugh E. Wright, for appellee.
It was error to grant defendant's motion for summary judgment where the pleadings, depositions and affidavits, summarized below, did not show that there was no genuine issue as to any material fact and that defendant was entitled to judgment as a matter of law. Accordingly, the judgment must be
Reversed. Bell, P. J., and Deen, J., concur.
SUBMITTED JANUARY 8, 1969 — DECIDED JANUARY 14, 1969.
McChargue, plaintiff below, brought suit for personal injuries against Black Grading Contractors, Inc., alleging that while he was working on a construction site the defendant, by the use of a large grading machine, recklessly or negligently pushed a large tree down upon him. Defendant answered and subsequently moved for summary judgment on the grounds that (1) it was not negligent (2) plaintiff failed to exercise due care for his own safety (3) plaintiff assumed any and all risk of injury to himself and (4) the occurrence was an accident, unmixed with any negligence of defendant. The court granted summary judgment for defendant, and plaintiff appeals.
The evidence before the court on motion for summary judgment consisted of the deposition and an affidavit of plaintiff; two depositions of Ralph E. Black, defendant's president; the deposition of William S. Spruill, defendant's employee who pushed the tree over; and an affidavit of L. D. Aiken, a person experienced in the grading business including the pushing down and removing of trees. This evidence, set out in more detail below, showed in general that the operator of the front end loader being used to push the tree over attempted to fell the tree halfway between a parking lot to his right and the plaintiff to his left. Plaintiff was engaged in sighting through a transit at the time and was unaware that the tree was being pushed over. After the tree left the "bucket" of the grading machine it twisted and changed its direction of fall toward plaintiff who was injured as a result.
Plaintiff testified that he was superintendent for A. R. Abrams, Inc., the general contractor for the construction job who had subcontracted with defendant for the clearing, grubbing and grading of the site. Defendant had begun the clearing operations a few days before the injury, and plaintiff had wanted defendant to clear out an area so that he could begin laying out the lines for the building. He had been unable to start with the lines on any previous day because the area wasn't clear enough, but by Wednesday, the day of the injury, the area to be worked was clear and plaintiff first commenced laying out the lines sometime after lunch. At this time defendant was almost through clearing out the remaining trees, and plaintiff possibly could have waited a day or so to begin his work. Plaintiff knew that clearing operations, including the pushing over of trees, was generally dangerous work, and he knew that while he was on the job site the subcontract was being performed. At the time of the injury he was sighting through his transit, and the first notice he had of his danger was when he heard defendant's employees yelling over the noise made by chain saws and the machinery. When plaintiff looked up he saw that the tree was within ten or twelve feet of him and falling towards him. He ran at right angles to the direction of the fall of the tree, which hit both him and his instruments.
In his affidavit plaintiff swore that, inter alia, the diameter of the tree pushed over on him was in excess of 24 inches; that although Ralph E. Black, president of defendant corporation, was present and plaintiff was in plain, unobstructed view of both him and the operator of the machine, neither gave him any warning or notice that the tree was about to be pushed down; the first notice he received of any danger was when he heard someone yell, at which point he looked up and saw the tree falling; he knew from experience of the danger involved when trees were being pushed down, and also that the operator of the machine has no control over the tree after it leaves the machine and that the tree may turn or twist and fall anywhere from 90 degrees to the right to 90 degrees to the left of the intended course; and had he known the operator was about to push the tree down from the position of his machine, he would have moved out of reach of the tree.
Ralph Black, defendant's president, testified that at the time of the injury Steve Spruill, one of defendant's employees, was operating a Caterpillar front end loader in order to push over the pine tree which was approximately 18 inches in diameter and 50 to 75 feet high. Black was standing approximately 30 feet to 50 feet behind the machine and observed the occurrence as it took place. Plaintiff was standing approximately 40 to 60 feet from the tree and to the left of the direction of the machine's movement, possibly at an angle of as much as 45 degrees. To the right of the machine's direction was a parking lot, and it was necessary to push the tree in the direction it was intended to fall, rather than farther to the right, because otherwise the tree would have landed on cars parked there. It was the intention to fell the tree in an area between the plaintiff on the left and the parking area on the right. Plaintiff was in plain view of both Black and the operator at the time power was applied to push the tree over, and it was obvious that plaintiff was concentrating on sighting through his transit and that his attention was not directed toward the machinery. Power saws were also in operation making quite a bit of noise. It was obvious to Black that if the tree fell in plaintiff's direction it would reach that far and fall on plaintiff. But Black considered that plaintiff was in a safe position considering the direction in which it was intended for the tree to fall, and he thought it unusual for the tree to change direction as it did when being pushed straight ahead. However, Black knew that once the tree leaves contact with the "bucket" on the machinery, the operator no longer has control over the tree and cannot direct its fall. He was also familiar with the fact that a tree may twist or turn when falling and land where not intended. Generally it is the root system which causes a tree to twist. Pine trees usually fall in the direction intended better than other species; however, "you never know when one will twist on you, any kind of tree. I would say a pine is easier to push than other trees and I can't say that they are going to fall exactly where we are going to put them, but from my experience they have. That is something you can't anticipate. It might vary a little bit." "It possibly could have been a heavier root on one side than the other which you can't anticipate that might have changed the direction of it. You just don't know. That is the reason my head is up when we are felling trees and we watch every move." Black could tell the tree had twisted and changed its angle of fall towards plaintiff's direction the moment it left the "bucket," and seeing plaintiff in danger he and the operator yelled, whereupon plaintiff responded immediately by running some 10 or 12 feet, when he was hit by the falling tree. Black and the operator both testified that when they came up to plaintiff after the injury, plaintiff stated that he knew he shouldn't have been out there and that he didn't have any business there at the time. Plaintiff, however, denied in his deposition making such statements. In Black's opinion, it was not unusual for plaintiff superintendent to be on the job but what he was doing was unusual on that particular day.
Steve Spruill, the operator, testified, inter alia, that prior to the injury he had cleared out certain areas in order to allow plaintiff to use his transit; that the tree which fell on plaintiff was approximately 18 to 24 inches in diameter; that he didn't think the tree was going to fall in plaintiff's direction and didn't consider plaintiff to be in a dangerous position; that he wouldn't think a person would be in any real danger unless within 15 feet of the area where he was going to push a tree down; that he was trying to put the tree down about halfway between plaintiff and the parking lot; that he knew that trees could twist and turn and fall in a direction different from that intended; that in his past experience trees had fallen perhaps five feet to the left or right of the direction intended; that he didn't dig around the roots of the tree prior to pushing it over; that he knew plaintiff's attention was directed toward his transit and not to what Spruill was doing; that the tree didn't start to twist and fall to the left until after it left the bucket; and that he didn't know what caused the tree to twist unless a root was holding it more on the left-hand side.
L. D. Aiken stated in his affidavit that he was familiar with the type machine defendant was using and familiar with the work of pushing down trees with these machines. The essence of the affidavit is that assuming as true the facts adduced upon the prior depositions and affidavit and the diagram of the scene sketched by Black on his deposition, the course the tree would take in falling could not be accurately predicted at all times; that trees of this kind and size will occasionally twist and turn and fall in a direction other than that directly opposite the applied force; that after a tree leaves contact with the machine the operator cannot thereafter exercise any control over the path of the falling tree; and the tree under the assumed facts could fall anywhere from 90 degrees to the left to 90 degrees to the right of the direction of the applied force and will occasionally do so.