Amundson v. Hedrick

• Decision Date: 26 March 1969
• Citation: 452 P.2d 308,253 Or. 185
• Parties: Ole T. AMUNDSON, Respondent, v. Howard HEDRICK, Administrator of the Estate of George Beal, Deceased, Appellant.
• Court: Oregon Supreme Court

Page 308

452 P.2d 308

253 Or. 185

Ole T. AMUNDSON, Respondent, v. Howard HEDRICK, Administrator of the Estate of George Beal Deceased, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted March 6, 1969.

Decided March 26, 1969.

Edward H. Warren, Portland, argued the cause for appellant. With him on the briefs were Hershiser & Mitchell, Portland.

Clifford B. Olsen, Portland, argued the cause for respondent. With him on the brief were Franklin, Olsen, Bennett, Des Brisay & Jolles, Portland.

Before PERRY, C.J., and SLOAN, GOODWIN, HOLMAN and HAMMOND, JJ.

HOLMAN, Justice.

This is an action to recover damages for personal injuries received in a one-vehicle automobile accident. Plaintiff was a guest passenger in a vehicle owned and operated by George Beal who died as the result of injuries received in the same accident. The defendant is the administrator of Beal's estate. Defendant appealed from a judgment for plaintiff.

Because plaintiff was decedent's guest, plaintiff may recover only if decedent was grossly negligent. ORS 30.115(2). The first issue in the case is whether there was evidence of gross negligence sufficient to justify the submission of the case to the jury. Plaintiff, decedent and a third party left Portland early in the morning for an ocean fishing trip out of the Port of Warrenton. They completed their fishing and commenced their return journey. The accident occurred late in the afternoon after they had traveled about 28 miles. The weather was dry and clear. The hard-surfaced portion of the highway was 22 feet wide with a 10-foot graveled shoulder on the right-hand side. The place of the accident was on a slight curve to the left on a mild downgrade. According to the other occupants of the vehicle, decedent was driving at a speed of about 55 miles per hour. Plaintiff said he looked at the speedometer and that was the speed. The posted speed at that point was 60 miles per hour. Decedent was cautioned to slow down prior to the curve, but either continued at the same speed or increased it immediately prior to the accident as if he had hit the accelerator instead of the brake. In rounding the curve the vehicle commenced to skid, went to the right onto the shoulder, back across the hard surface onto the wrong side of the road, weaved back and forth and went over an embankment on the right-hand side. Prior to leaving the road the vehicle left 43 feet of broad, irregular skid marks as if the vehicle were sliding sideways.

Another witness, a passenger in a second vehicle, testified that decedent's vehicle was going too fast but did not estimate the rate of speed in miles per hour. At the time she first saw the vehicle it was out of control.

It is the court's opinion that decedent's actions, as a matter of law, did not constitute gross negligence. A speed of 55 miles per hour was not excessive considering the highway and traffic at the scene of the accident. A picture of the highway is in evidence and demonstrates no observable danger in driving the posted speed. We do not believe that the facts demonstrate that the decedent's course of conduct was such that it could be said he intentionally did an act which created a high degree of probability that serious harm would result. Williamson v. McKenna, 223 Or. 366, 354 P.2d 56 (1960). His only intentional act was his continued speed and it was not such as would normally cause loss of control. A mental attitude which is oblivious of consequences cannot be inferred from failure to heed a warning to slow down from a speed that is not excessive.

There is evidence that on the trip to the coast, decedent, who was 70 years of age, demonstrated that he was an extremely poor and highly erratic driver. One of the assignments of error is the trial court's admission of evidence concerning what occurred 12 hours previously on the trip to Warrenton. Presuming, as contended by plaintiff, that the evidence was admissible to show decedent's demonstrated lack of skill and thus his knowledge of his own ineptitude as a driver, it is the court's opinion that the evidence is still insufficient to support a cause of action for gross negligence. It is plaintiff's contention that decedent's disregard of the warning to slow down constituted gross negligence when such disregard is considered in the context of decedent's knowledge of his own limitations as a driver. The testimony concerning the trip to the coast was replete with examples of driving in the wrong lane, cutting across traffic lanes, driving past streets where decedent should have turned, taking wrong roads, nearly hitting a bridge abutment at 85 miles per hour and numerous other...