Burghardt v. Olson

Decision Date17 February 1960
Citation223 Or. 155,349 P.2d 792
PartiesJune C. BURGHARDT, Guardian ad litem, for Gary Burghardt, a minor, Respondent, v. Janet OLSON, a minor, by her Guardian ad litem, Esther Olson, Appellant.
CourtOregon Supreme Court

James O. Goodwin, Oregon City, argued the cause for appellant. On the brief were Jack, Goodwin & Santos, Oregon City, and Philip A. Levin, Portland.

George L. Hibbard, Oregon City, argued the cause for respondent. On the brief were Beattie, Hibbard, Jacobs & Caldwell and Harold Uney, Oregon City.


ROSSMAN, Justice.

This is an appeal by the defendant, Janet Olson, from a judgment which the circuit court entered in favor of the plaintiff Gary Burghardt after a jury had returned its verdict for him. The action is governed by our automobile guest statute, ORS 30.110 which provides that a non-paying guest in an automobile has no cause of action against his host 'unless the accident was intentional on the part of the owner or operator or caused by his gross negligence or intoxication or his reckless disregard of the rights of others.' The plaintiff, who was 16 years of age at the time of his injury, appears through a guardian ad litem and charges that the defendant, in operating her automobile in which he was a non-paying guest, was 'grossly negligent and acted in reckless disregard of the rights and safety of plaintiff.' The defendant was 17 years of age at the time of the mishap, and, like the plaintiff, is represented by a guardian ad litem. The complaint gives the following specifications of its general charge:

1. 'Driving at a speed and in a manner that was unreasonable considering the highway, the dark condition, and other conditions then and there existing.'

2. 'Failed to keep their vehicle under proper control.'

3. 'Failed to keep a proper lookout.'

The accident which underlays this action occurred on the road which leads from Molalla to Woodburn. Some distance prior to the scene of the accident the road makes a curve. The defendant's car, after passing through the curve and some space beyond it, left the road and in that manner the plaintiff sustained his injury.

The defendant-appellant presents only one assignment of error. It predicates error upon rulings which denied defendant's motions for a non-suit and for a directed verdict. Both motions were based upon contentions that the record contained no evidence of gross negligence.

We shall now consider the issues presented by the motions just mentioned. Since the verdict was in the plaintiff's favor we will give him the full benefit of all of the evidence. All of it came from witnesses called by him.

At the times material to the issues of this case the plaintiff and the defendant were high school students who lived in or near to Molalla. In the evening of March 14, 1957, the plaintiff, the defendant and some of their fellow students had returned to Molalla from Salem where they had attended a basketball game. Upon reaching Molalla an automobile was placed at the defendant's disposal and she thereupon invited the plaintiff and two other youngsters to accompany her upon a short ride. The plaintiff seated himself to the right of the defendant and the other two youngsters, Willie Olds and Janice Parnell, took the rear seat. A car driven by a friend, Donald Graves, and containing some other high school pupils was about to head for Woodburn and when it started the defendant, upon the plaintiff's suggestion, followed it. After the Graves car had reached a point called Blackman's Corner it paused until the defendant's car came up. Thereupon the plaintiff and Larry Burkholder, an occupant of the Graves car, had a brief conversation. At its conclusion the two cars again resumed their journeys with the Graves car in the lead. The defendant and her friends had nothing in mind as to the trip except to take a ride. According to the plaintiff they engaged in conversation 'about the game and this and that.'

One mile beyond Blackman's Corner a curve occurs in the road. Immediately beyond it was the scene of the misfortune which yielded this law suit. The distance between the two places, that is, between the site of the accident and Blackman's Corner, is about one mile.

Since the curve in the road through which the defendant's car had passed shortly before the accident received attention during the trial and is frequently mentioned in the plaintiff's (respondent's) brief, we assume that the plaintiff believes that it had a bearing upon the accident. Generally, a motorist can not drive as rapidly in a curve as upon a straight stretch of road. However, the degree of curvature has a material bearing upon the speed with which he can proceed. A sharp curve obviously presents greater difficulties to a motorist than one of a broad sweeping character. Moreover, the pavement is so sloped or banked in some curves that the operation of cars through the curve is materially facilitated.

The sole evidence upon the subject indicates that the defendant's car did not begin to skid until it had passed through the curve. That evidence was given by one of the plaintiff's witnesses, a member of the Oregon State Police. There is no contention that he misspoke himself or was guilty of an inaccuracy. How far the defendant's car went after it had passed through the curve before it showed signs of distress was left undisclosed. That is, no one mentioned how far the car went upon the straightaway before it escaped from the defendant's control. The road, after it has completed the curve, becomes a straightaway. Although nothing has been called to our attention which tends to indicate that the curve was a factor in causing the accident we will relate the evidence concerning it and also take note of the other evidence pertaining to the other parts of the road.

No witness mentioned the degree of curvature of the turn in the road through which the defendant's car had passed just before the accident. Nor did any witness, in referring to the curve, use a descriptive term such as sharp, blunt, sweeping or right angle. The sole source of information afforded by the record as to the nature of the turn consists of two photographs which were introduced in evidence by the plaintiff and which show the segment of road in which the turn occurs. The two photographs were taken from opposite directions. One of them shows a part of the turn as it would be seen by a person, like the defendant, who approached it going from Molalla. The other shows the approach to the turn as seen by a person going to Molalla. Each photograph was taken at a distance of possibly 300 feet from the turn. Each shows principally the strip of road leading to the turn. The latter was so far from the camera that it is inadequately represented. The road which extends beyond the turn is indicated only by a line of telephone poles that possibly parallels the pavement. The total number of telephone poles that is shown in the distance beyond the turn is four. The poles appear to indicate a straight stretch of road. It is impossible to determine from the photographs the degree of curvature of the turn. It is clear, however, that if the road parallels the poles it takes off at an angle of much less than 90 degrees. In truth, so far as can be judged from the photographs, the angle appears to be substantially less than 45 degrees. However, attempting to ascertain the degree of curvature by looking at the telephone poles as they are represented in the photographs is scarcely anything better than guess work. Further, the photographs do not enable one to determine, except roughly, whether the turn in the road was abrupt or sweeping. Without knowing whether the turn in the road was sweeping or not it is difficult to decide the rate of speed with which a motorist could essay it. No witness mentioned whether the pavement where the road turns was sloped or banked so as to facilitate the movement of a car through the turn.

ORS 17.250 states that a jury must be instructed by

'* * * the court on all proper occasions:

* * *

* * *

'(6) That evidence is to be estimated, not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict; and, therefore,

'(7) That if weaker and less satisfactory evidence is offered when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust.'

If the turn in the road were deemed by the plaintiff to have a material bearing upon this case, we can not understand why something better than these two photographs was not presented as a means of depicting the degree of curvature and the condition of the pavement as to banking at the place where the motorist would make the turn.

The road is hard surfaced to a width of 20 feet. On each side of the pavement a shoulder 4 feet in width, made of gravel, affords more space for the motorist. Beyond the gravel shoulder there lies a drainage ditch four feet deep with sloping, muddy sides. The ditch is about four or six feet broad at its top. Water four or six inches deep is in its bottom. When the defendant approached the turn there was to her right a post bearing two highway signs. One of them was a representation of a bent arrow and indicated a turn in the road. The other bore the legend '45 M.P.H.' The defendant testified that she probably saw these signs.

At the time of the accident the pavement was dry and the weather was clear. The evidence mentions no cars upon the road except the defendant's and Graves'. The defendant's car was in good mechanical condition and her headlights were burning.

The areas to the sides of the road were open, that is, there were no structures or embankments that could conceal a car operating upon it. Both the defendant and the plaintiff were familiar...

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