O'Brien v. Royce

• Decision Date: 08 July 1924
• Citation: 111 Or. 488,227 P. 520
• Parties: O'BRIEN v. ROYCE ET AL.
• Court: Oregon Supreme Court

227 P. 520

111 Or. 488

O'BRIEN v. ROYCE ET AL.

Supreme Court of Oregon

July 8, 1924

Department 2.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by J. W. O'Brien against E. Royce and another, doing business as the Portland Taxicab Company. Judgment for plaintiff, and defendants appeal. Affirmed.

This is an appeal from a judgment in favor of plaintiff for personal injuries alleged to have been caused by the negligence of an employee of defendants in the operation of a motor vehicle.

Plaintiff avers, at paragraphs 1 and 2, the business of defendants to be that of operating taxicabs and automobiles for hire; that at all times mentioned herein the defendants were the owners of an automobile bearing Oregon license No. 41533, which, at the time of the accident, was operated by one H. F. Stanley an employee and driver of defendants. Paragraph 3 alleges that on November 18, 1922, while plaintiff was making an adjustment on his Ford automobile, which was then standing at the extreme northerly and right-hand side of what is known as the Base Line road, about two miles east of the city of Portland, and headed in a westerly direction, towards the city of Portland, the automobile owned by defendants and operated by Stanley collided with plaintiff, without any fault or negligence on his part, seriously and permanently injuring him. Paragraph 4 avers that at the time and place of the accident defendants were negligent in the following particulars: That the automobile of defendants was being operated at a greater speed than 30 miles per hour, namely at a speed of approximately 45 miles per hour, and at a high dangerous, and reckless rate of speed with respect to the character of the place where the accident occurred; that the driver of the defendants' automobile failed to keep a proper, or any, lookout; failed to sound any horn or otherwise to give an alarm of his approach, and failed to have the automobile under control, but operated it in disregard of plaintiff's rights. Subdivision (e) of paragraph 4 relates to the conduct of Stanley, the driver of defendants' car, in failing to stop and render aid and assistance after the accident occurred. Paragraph 5 avers that as a natural and proximate result of the carelessness and negligence of the driver of defendants' car the plaintiff was permanently injured; that he was struck by defendants' car and dragged for a distance of more than 50 feet; that he was seriously injured about the head and back, limbs and right hip; that the ligaments, tendons, and muscles of his back were bruised, lacerated, and torn, and that he sustained a fracture of the femur of the right leg as a result of which the bones of that leg overlapped more than 4 inches, necessitating an operation in order to plate the bones and hold them in apposition. He averred that as a result of his injury, he was caused to suffer severe and excruciating agony and mental anguish, and that he has been confined to the hospital at all times since the injury and up to the time of the commencement of the action. He demanded judgment in the sum of $25,000, and, further, that defendants be required to pay the sum of $500 for doctor bills, $238.30 incurred for hospital charges, medicines, bandages, and surgical appliances, and the further sum of $15 for X-ray.

Defendants answering, admit paragraphs 1 and 2, and deny paragraphs 3, 4, 5, and 6 and the whole thereof. For a further and separate answer and defense defendants alleged that at the time of the accident a dense fog hung over the road, making it impossible to distinguish objects at a greater distance than 20 feet; that at that time the defendants were the owners of an automobile operated by an employee who was then proceeding in a careful and lawful manner, and at a speed of about 12 miles per hour, along the right-hand side of the Base Line road near a place commonly known as Ventura; that at that time and place a Ford coupé, under the control of the plaintiff, J. W. O'Brien, was "carelessly and negligently parked by plaintiff, headed in a westerly direction, on the main-traveled portion of said road and highway, to the right of the center line thereof, the right wheels of said coupé being approximately 4 feet within the main-traveled portion of said road and highway." They then aver negligence upon the part of the plaintiff in failing to have any lights on the rear of his coupé, or elsewhere, visible to one approaching from the rear. It is further averred that at the time and place of the accident a companion of plaintiff had parked his Ford on the right-hand side of the road and a few feet to the rear of plaintiff's coupé, in such manner that the front wheels and hood of the companion's Ford extended onto the main-traveled portion of the highway; that Stanley, defendants' employee, was proceeding on the extreme right of the main-traveled portion of the road; "that upon approaching said automobile so parked by plaintiff's companion * * * said employee turned said taxicab to the left in order to pass the same, and upon passing said automobile, turned said taxicab to the right toward the right-hand side of said highway, and, as he turned said taxicab back to the right, he perceived said Ford coupé of plaintiff directly in front of said taxicab and but a few feet away; that owing to the way said taxicab was then headed, and the nearness of said Ford coupé so carelessly and negligently parked on said highway, without lights, by plaintiff, as aforesaid, it was impossible to pass the same on the left-hand side or attempt to do so without colliding with the same; that said employee thus placed in a position of extreme peril through the carelessness and negligence of plaintiff in parking said coupé on the maintraveled portion of said highway, without lights, as aforesaid, and in an attempt to avoid a collision which was then imminent turned said taxicab further to the right, and passed said coupé on the right-hand side, and in so passing said taxicab struck a door of said coupé, which was then standing open at the right-hand side thereof; that said employee, seeing no one about said coupé, and perceiving that the same was without lights, believed it to be an abandoned car, and proceeded along said highway."

Defendants aver that the plaintiff was careless and negligent in the following particulars:

"(a) That plaintiff carelessly and negligently parked his said coupé upon the main-traveled portion of said highway.

"(b) That plaintiff carelessly and negligently failed and neglected to have any lights on the rear of said coupé, or any lights thereon whatsoever visible to vehicles approaching from the rear.

"(c) That plaintiff carelessly and negligently parked his said coupé upon the main-traveled portion of said highway in such a position and manner as to be in the direct path of vehicles attempting to pass said automobile parked in the rear of plaintiff's coupé as aforesaid.

"(d) That plaintiff carelessly and negligently parked his said coupé upon the main-traveled portion of said highway when a dense fog prevailed, without posting any light or other device to warn approaching vehicles of the position of said coupé."

The reply denied defendants' further and separate answer and defense.

On trial a verdict was returned in favor of the plaintiff and against the defendants in the sum of $20,000 damages, and $753.31 for expenses incurred. From a judgment entered thereon, the defendants appeal to this court, assigning error in the giving of certain instructions and in refusing another requested by defendants.

John C. Veatch, of Portland (Joseph, Haney & Littlefield, of Portland, on the brief), for appellants.

Frank J. Lonergan, of Portland (Lonergan & Wagner, of Portland, on the brief), for respondent.

BROWN, J. (after stating the facts as above).

The plaintiff's testimony is to the effect that on the night of November 17, 1922, J. W. O'Brien plaintiff herein, accompanied by his wife, with Harry L. Houston and Miss Lorna Graham, was driving a Ford coupé in a westerly direction on his return to Portland by way of the Base Line road. As the party neared Ventura, a point on that...