Bland v. Williams
| Decision Date | 07 December 1960 |
| Citation | 225 Or. 193,357 P.2d 258 |
| Parties | Beverly BLAND, Appellant, v. L. G. WILLIAMS and L. F. Williams, Respondents. |
| Court | Oregon Supreme Court |
Burton J. Fallgren, Portland, argued the cause for appellant. With him on the brief were Fallgren & Navarra and Paul C. Paulsen, Portland.
James Arthur Powers, Portland, argued the cause for respondents. With him on the brief was Earle P. Skow, Portland.
Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN, and HOWELL, JJ.
Beverly Bland, plaintiff, appeals from a judgment of involuntary nonsuit granted in favor of the defendants Williams at the conclusion of her evidence in an action arising out of injuries sustained in an automobile accident.
Plaintiff was the guest passenger of Larry Williams, who was driving his father's automobile at the time of the accident. While both Larry and his father were named as defendants, we will refer only to Larry herein. There was evidence that the car was new and that Larry was driving it for the first time.
The sole question is whether there was sufficient evidence of gross negligence to permit the case to go to the jury. The trial court held that there was not.
Beverly and Larry were high school classmates and friends. With others of their approximate age, both had attended a dance in Carlton. After the dance, Beverly and three other friends accepted Larry's offer of a ride to a restaurant in McMinnville. The time was about one a. m. The night was foggy. The road between Garlton and McMinnville is a state highway having a paved surface 18 feet wide with narrow shoulders on each side. The road had a number of curves and also followed the rolling topography by going up over rises and down into depressions.
The evidence that fog was present along the route of travel was not specific, but, giving effect, as we must, to the best evidence in the plaintiff's case, there was evidence of sufficient fog in the atmosphere to limit visibility to a significant degree. Testimony concerning visibility varied from '50 feet in patches' to 'about 200 feet.' Assuming that there were patches of fog in which visibility was restricted to 50 feet, the evidence indicated that such patches were frequent; that the visibility at the time and place of the accident may have been affected by fog; and that fog was a continuing factor which a prudent driver would have had in mind at the time.
The mechanics of the accident were described only sketchily by witnesses. As the car was proceeding along the road at a speed which the jury could have found to be 60 miles per hour, the passengers in the front seat were attempting to tune the car radio. None expressed any concern about speed. The driver, glancing momentarily away from the road, pushed a button which tuned the radio. At that instant, the plaintiff called his name suddenly. Plaintiff recalled that she was prompted to call out the driver's name because the car appeared to be going straight ahead while the road was curving gradually to the left. Almost immediately the witnesses heard the noise of gravel under the car.
During the fleeting moments when Larry noticed his difficulty and attempted to retain control, the vehicle apparently did not decrease speed. He said that the first thing he knew the car had edged off the pavement and at least one of the wheels on the right side had dropped into the ditch. Larry said he attempted to regain the pavement by turning the front wheels and accelerating the engine. This maneuver failed. Apparently, while the right wheels were in the ditch, the forward motion of the car was abruptly altered when the car struck the projecting end of a concrete culvert.
The testimony was understandably vague about what happened next, because the passengers were the only witnesses and the episode was concluded in an instant. Circumstantial evidence indicated that the car flipped upward, cutting a section out of a utility pole in a manner that left a stump seven or eight feet high. The car retained sufficient momentum to travel some 30 feet straight ahead into a driveway. This evidence was consistent with, and tended to corroborate, the other testimony concerning a speed of 'between 50 and 60 miles per hour.' It did not of itself prove any specific speed. Navarra v. Jones, 178 Or. 683, 169 P.2d 584.
The negligence in the specific act which preceded the immediate loss of control was momentary inadvertence, and of itself would not constitute gross negligence under our decisions upon the subject. Kudrna v. Adamski, 188 Or. 396, 216 P.2d 262, 16 A.L.R.2d 1297; Williamson v. McKenna, Or., 354 P.2d 56.
The facts of the instant case are similar in many respects to those of Burghardt v. Olson, Or., 354 P.2d 871 (). It that case we held that traveling 60 miles per hour while approaching a curve was not evidence of recklessness under the test laid down in Williamson v. McKenna, supra. The critical distrinction, of course, is the presence of fog in the case at bar.
The plaintiff urges that persistent speed in the face of the obvious hazards created by fog is an objective indication of a reckless state of mind despite contrary subjective evidence that Larry intended to be careful of his father's new car.
This court has taken note of the effect of fog in cases involving ordinary negligence:
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State v. Betts
...to slow down and, according to her, he did. Two recent civil gross negligence cases most resembling the present one are Bland v. Williams, 225 Or. 193, 357 P.2d 258, and Holman v. Barksdale et al., 223 Or. 452, 354 P.2d 798. In Bland v. Williams, supra, the driver's speed was 60 miles per h......
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Morehouse v. Haynes
...driven several times before was not sufficient to prove gross negligence. Id. at 206–07, 354 P.2d 871. Similarly, in Bland v. Williams, 225 Or. 193, 357 P.2d 258 (1960), the defendant was speeding on a foggy night when he took his eyes off the road to adjust his radio. The defendant drove o......
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Morehouse v. Haynes
...The court held that that evidence was insufficient to prove that the defendant drove recklessly, and reversed. Id. In Bland v. Williams, 225 Or. 193, 357 P.2d 258 (1960), the defendant drove the plaintiff and two other high school classmates after a school dance on a foggy night. The accide......
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State v. Berrian
...the evidence of gross negligence. It is contended that the evidence shows no more than a 'momentary inadvertence': Bland v. Williams et al, 225 Or. 193, 196, 357 P.2d 258. On the contrary, the jury could well have found that defendant's inability to control his car and keep in on the right ......