Burghardt v. Olson

• Decision Date: 27 July 1960
• Citation: 354 P.2d 871,223 Or. 155
• Parties: June C. BURGHARDT, Guardian ad litem for Gary Burghardt, a minor, Respondent, v. Janet OLSON, a minor, by her Guardian ad litem, Esther Olson, Appellant.
• Court: Oregon Supreme Court

Page 871

354 P.2d 871

223 Or. 155

June C. BURGHARDT, Guardian ad litem for Gary Burghardt, a minor, Respondent, v. Janet OLSON, a minor, by her Guardian ad litem, Esther

Olson, Appellant.

Supreme Court of Oregon.

July 27, 1960.

Philip A. Levin, Portland, argued the cause for appellant on rehearing. With him on the brief were Jack, Goodwin & Santos, Oregon City.

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

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and MILLARD, JJ.

ROSSMAN, Justice.

The brief accompanying the petition for a rehearing and the argument presented on rehearing have been given careful consideration. In fact, the entire case has been analyzed once more.

Our original opinion gives a review of all parts of the evidence that appear to have any bearing upon the issues submitted by the appeal. The petition for a rehearing makes no claim that our review was unfair or incomplete. It argues that we should have affirmed the action of the trial judge which submitted the case to the jury and that we should not have reversed the challenged judgment.

Only four witnesses testified. All of them were called by the plaintiff. Only two of them had seen the accident occur. They were the plaintiff and the defendant. Both of them swore that they could not recall anything whatever about the movement of the car immediately preceding its entry into the curve or what occurred from that point on. For example, neither the plaintiff nor the defendant could remember whether any occupant screamed before the car met with its mishap or whether it skidded. The other two witnesses were (1) a police officer who came upon the scene a few minutes after the accident had taken place and (2) Donald Graves, the friend of the plaintiff who was driving the car which was a quarter mile ahead of the defendant's and which was proceeding in the same direction. He did not see the accident take place.

Our original opinion states : 'The plaintiff testified that before the car reached the turn he noticed that its speed was 65 miles.' We so stated notwithstanding the fact that the plaintiff had sworn in one part of his testimony that he made his estimate of the defendant's speed before the car had reached Blackman's corner where, it will be recalled, it stopped for several minutes. Nevertheless, we shall continue to assume that the car's speed as it neared the turn was 65 miles.

There is nothing whatever in the record which indicates that the four young occupants of the car were in a gay or carefree frame of mind. The record mentions no petting, romping, singing or other activity which would draw the defendant's attention from her duty as driver. Her driving should be judged in the same manner as that of any other person who is giving attention to the operation of the car.

The plaintiff testified that while the defendant was driving neither he nor any other occupant of the car commented upon the defendant's speed. His exact words were:

'Q. Did anyone in your car make any comment to Janet about the speed of the car? A. No.

'Q. Did you say anything to her about the speed? A. No.

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'Q. But you have no recollection of making any comment to her about speed? A. No.

'Q. Did any of the others make any comment to her about speed? A. Not to my knowledge.'

If the defendant engaged in conversation while driving, or in any other way diverted her attention from her duty, the fact escaped mention. It is true that the plaintiff testified, 'It seems like I said something that there was a curve, but she knew it was there.' When his counsel asked him another question the plaintiff replied: 'I said something about--I remember it was something about 'be careful of the curve' or 'watch out for the curve." Then he was asked, 'Do you remember where it was when you made that comment?' He replied, 'No, I don't.' Upon cross examination he testified, 'but it just comes to my memory that I said something about the curve coming up ahead. But I can't remember what happened after that.' The plaintiff at no time undertook to mention anything that happened from the time the car neared the curve. The plaintiff was not asked whether the defendant reduced her speed when she entered the curve.

Accordingly, as the car neared the curve the plaintiff 'said something about the curve' but he was unable to 'remember what happened after that.' How far the beginning of the curve was from the scene of the accident is not disclosed by the record.

Possibly everyone who has driven a car with a guest in the front seat has heard his guest mention a curve in the road, an intersecting road, a highway sign, some other car that is in sight or something else that engages the attention. Comment of that kind is inevitable because guest and driver have their eyes on the road and the objects in sight. Surely, when the guest makes comment of that kind he is not giving a warning, especially not when, as the plaintiff said in this case, 'but she knew it was there,' that is, the curve.

The foregoing brings us to the curve. We pause to observe that although we have used the words 'curve' and 'turn' more than once in this opinion it may be that the turn in the road has received more attention in this court than it did in the trial court. For example, the above mentioned police officer, as a witness for the plaintiff and at the request of his counsel, drew in the presence of the jury upon a large sheet of drawing paper a sketch of the scene of the accident. It depicts the road, the shoulders, the telephone pole with which defendant's car collided, the skid marks made by the defendant's tires and sets forth in terms of feet the distance from the beginning of the tire marks to the pole and from the latter to where the car came to rest. But, it does not indicate the turn nor the distance from where the tire marks began to where the turn ended. After the officer had completed his drawingplaintiff's counsel addressed him as follows: 'Will you put in where the curve is.' The officer replied, 'The curve is on up this way. The skid marks were not in the curve.' He was not asked for the distance from the curve to the beginning of the skid marks.

Neither he nor anyone else made any effort whatever to show the distance from the end of the turn to where the car seemingly escaped from the defendant's control. The facts just mentioned possibly indicate that the turn was not deemed as important in the trial court as upon appeal. We mention that fact solely for the purpose of indicating that it is impossible to determine from the record how far the car had traveled after leaving the curve before it escaped from the defendant's control.

Up to the point where the car approached the curve we have the plaintiff's account of its operation, but from that point on we do not have the benefit of anyone's description of what took place. Both the plaintiff and defendant swore they could not recall what happened after the car approached the turn in the road. It must be remembered that the accident did not happen in the area covered by the plaintiff's description but at some distance beyond that point. The record does not disclose the distance between the beginning of the turn and the spot where the car seemingly escaped from the defendant's control. It is true that the evidence affords a depiction of the destruction wrought by the car after it left the pavement, and since the damage inflicted by the car may afford some basis for judging its momentum, we will later give that fact attention.

Our original opinion mentioned the fact that near the beginning of the curve a highway sign signified that the indicated speed at that place was 45 miles per hour. Mr. Justice O'CONNELL, in the specially concurring opinion which accompanied our original opinion, stated:

'It is common knowledge that curves are frequently negotiated safely at speeds which exceed the indicated speed posted by the Highway Department.'

We believe that Justice O'CONNELL'S observation is well founded. If it needs corroboration it can readily find it in the fact that the Graves' car which was just ahead of the defendant's was going at approximately the same rate of speed as the defendant's and passed through the curve and the area beyond without difficulty.

Although the plaintiff, as a witness, mentioned the curve and the sign which announced the indicated speed of 45 miles per hour, he did not say that the defendant failed to reduce her speed. It may be that a presumption is warranted (ORS 41.360(1) and (33) that the defendant reduced her speed to comply with the law's demands, but we will continue to do as we did in our original opinion and assume that the defendant drove through the turn of the road at about 65 miles per hour. In his specially concurring opinion Mr. Justice O'CONNELL stated:

'We are entitled to recognize that rounding a curve at a speed twenty miles in excess of the indicated speed of 45 miles per hour does not, in itself, show that there is involved a high probability of serious harm.'

It is clear, as our original opinion states, that the damage which the defendant's car inflicted indicates that it was traveling with considerable momentum when the accident occurred. We are aware of no means whereby its actual rate of speed can be determined by looking at the two photographs of the wrecked car that constitutes part of the record and taking note of the other evidence. But we are satisfied that its speed must have been considerable.

Navarra v. Jones, 178 Or. 683, 169 P.2d 584, 585, states:

'The defendant gave no testimony concerning the speed at which he was driving. There was, of course, evidence concerning the nature of plaintiff's injuries, which the plaintiff contended was some evidence of the violence of the collision with the concrete culvert, and, therefore, some...