20 P.2d 387 (Or. 1933), Rauch v. Stecklein

Citation:20 P.2d 387, 142 Or. 286
Opinion Judge:ROSSMAN, Justice.
Party Name:RAUCH v. STECKLEIN.
Attorney:[142 Or. 287] Allan Carson, of Salem (Carson & Carson, of Salem, on the brief), for appellant. Howard P. Arnest, of Portland, and Walter C. Winslow, of Salem, for respondent.
Judge Panel:RAND, C.J., and BELT and KELLY, JJ., concur.
Case Date:March 28, 1933
Court:Supreme Court of Oregon
 
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Page 387

20 P.2d 387 (Or. 1933)

142 Or. 286

RAUCH

v.

STECKLEIN.

Supreme Court of Oregon

March 28, 1933

Department 1.

Appeal from Circuit Court, Marion County; L. H. McMahan, Judge.

An action by Frank Rauch against John Stecklein to recover damages for the loss of the services of his minor son, Paul Rauch, who was killed when an automobile in which he was riding, and which was driven by the defendant, overturned. The complaint charges that the defendant was grossly negligent, and that as a result thereof the death occurred. The answer denies these charges. From a judgment for the plaintiff in the sum of $500, based upon the verdict of a jury, the defendant appealed.

Reversed.

Page 388

[142 Or. 287] Allan Carson, of Salem (Carson & Carson, of Salem, on the brief), for appellant.

Howard P. Arnest, of Portland, and Walter C. Winslow, of Salem, for respondent.

ROSSMAN, Justice.

The defendant is a cobbler in the city of Mount Angel, and is also the leader of an orchestra composed of boys and young men. Paul Rauch, who was 19 years of age at the time of the accident which we shall now describe, was a member of the orchestra. August 11, 1929, the orchestra desired to play at a picnic held at a point on the Mount Hood Highway known as Zigzag. A truck transported virtually all of the boys to the picnic except Paul Rauch and the two sons of the defendant who rode with him in his car. When the concert was concluded the defendant and the three boys entered his car and the return trip began. Paul was seated to the right of the defendant. About one and one-half miles before they reached Sandy the accident occurred, which cost Paul his life. It was then between 5 and 6 o'clock in the afternoon, the pavement was dry, and the atmosphere was clear. At the point where the accident occurred the roadway is paved to a width of 18 feet with oilbound macadam. Next to the paved roadway is a 3-foot shoulder composed of loose gravel, beyond which is a 10-foot area covered with sod which gradually slopes away from the shoulder and terminates against a low embankment which marks the outer edge of the highway right of way. At the scene of the accident there is a slight down grade in the direction in which the defendant's car was proceeding. The highway at this point pursues a straight course for a distance of 350 feet. Before the defendant reached this straightaway he rounded a curve. The testimony indicates that [142 Or. 288] the car was proceeding at the rate of 27 to 30 miles per hour, and as it rounded the aforementioned curve its right-hand wheels got over the edge of the pavement into the loose gravel of the shoulder. The defendant described the situation thus:

"On that curve, got off in the loose gravel and I felt the car slip towards the ditch, and I made a turn to the left to get out in the road, and made another turn to the right to get on the right place but that turn was too fast.

"Q. How do you mean it was 'too fast'? A. Well, it was too fast, the car was out of control.

"Q. Did it come back to the right the way you expected it to, or not? A. No, it come more than I expected it to come.

"Q. Then what happened? A. After that I don't know anything until I got out of the car."

Again he testified: "After the second turn I know something going to happen, I just felt it, and I was scared we going to hit the ditch, the bank, on the right-hand side, but the car landed on the left-hand side."

He declared that he did not know how it happened that the car overturned on the left-hand side of the highway when he anticipated the collision with the embankment to the right of the highway. He swore that his brakes were in good condition, and that he applied them as he made the turn to the left which pulled the wheels out of the gravel shoulder. Although he was not sure how long he kept his brake lever down, he swore that after the accident he observed black marks upon the pavement in a zigzag course made by the wheels of his car. From the place where a deep cut was observed in the gravel shoulder made by the wheels of the defendant's car when it first left the [142 Or. 289] pavement to the place where it overturned on the left side of the right of way was 350 feet. The defendant estimated that from the point where he pulled out of the gravel to the place where he made his second turn was a distance of approximately 50 feet. He added that after this 50-foot stretch had been traversed he did not know what occurred. The defendant's son Joseph testified that after the accident he noticed that the emergency brake was tightly set, the car was in high gear, and the ignition switch was turned off. The defendant denied

Page 389

that he had set the emergency brake and shut off the ignition. His two sons testified that they observed no one set the brake or turn off the ignition after the car had come to a halt, and that if any one had done so they would have observed him. John Stecklein, the other son of the defendant, testified that after the car had made the second turn he saw Paul's hand pull back the emergency brake lever and his right hand "pulled the steering wheel down." He added that he heard the clicking sound made as the brake lever was brought back. The defendant and Joseph denied that they had observed such action upon Paul's part.

The defendant testified that he had owned this car for about ten months and had driven another one for six months. To the inquiry, "Had you driven very far?" he replied, "No, I just drove around home."

Section 55-1209, Oregon Code 1930, provides: "No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall...

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