Burrows v. Nash

• Jurisdiction: Oregon
• Parties: BURROWS v. NASH et al.
• Citation: 199 Or. 114,259 P.2d 106
• Court: Oregon Supreme Court
• Decision Date: 24 June 1953

Page 106

259 P.2d 106

199 Or. 114

BURROWS v. NASH et al.

Supreme Court of Oregon.

Argued and Submitted May 20, 1953.

June 24, 1953.

Theodore B. Jensen, Portland, Davis, Herbring, Jensen & Martin, of Portland, on the briefs, for appellant and cross-respondent.

Arno H. Denecke, of Portland, Wilbur, Mautz, Souther & Spaulding, of Portland, on the brief, for respondents and cross-appellants.

Before LATOURETTE, C. J., and WARNER, ROSSMAN, LUSK, TOOZE and PERRY, JJ.

TOOZE, Justice.

This is an action for damages for personal injuries, arising out of an automobile accident, brought by June Burrows, a minor, by her guardian ad litem, as plaintiff, against Daren B. Nash and Kenneth W. Nash, and others, as defendants. A judgment of involuntary nonsuit was entered in favor of all defendants except the defendants Nash. The trial resulted in a verdict and judgment in favor of plaintiff and against the defendants Nash in the total sum of $11,500.

The defendants moved the court for an order setting aside the verdict and judgment and for judgment notwithstanding the verdict in their favor or, if such motion be denied, for a new trial. The trial court denied the motion for judgment notwithstanding the verdict but allowed the motion for a new trial. Plaintiff appeals from the order allowing a new trial; defendants cross-appeal from the order denying their motion for judgment notwithstanding the verdict.

Plaintiff was injured at approximately 1:00 a. m. on January 1, 1949, while riding as a guest passenger in a 1940 Chrysler sedan automobile owned and maintained by defendant Kenneth W. Nash as a family-purpose car and being then operated and driven by his son and a member of his family; viz., defendant Daren B. Nash.

As against these defendants, this action is brought pursuant to the provisions of § 115-1001, O.C.L.A., generally known as the 'guest statute'. Plaintiff charged defendants with gross negligence and a reckless disregard of her rights in four particulars: (1) failure to maintain a proper lookout; (2) excessive speed; (3) failure to maintain proper control; and (4) operating said automobile without wearing adequate glasses, knowing the driver's vision to be impaired.

At the time of the accident plaintiff was 17 years of age, and defendant Daren B. Nash was 21 years of age. One Helen Heath, a friend of plaintiff, arranged a date between plaintiff and Daren B. Nash on the night of the accident (this had not met before), which she had a date with one Roland Plath. Plaintiff rode in the front seat of the automobile, which Helen Heath and Roland Plath rode in the bank seat.

The accident occurred on McLoughlin boulevard at a point about three quarters of a mile north of the city limits of Milwaukie in Clackamas county, Oregon, and about one fourth of a mile south of the city limits of Portland.

McLoughlin boulevard between Milwaukie and Portland is a paved four-lane through arterial highway about one mile in distance and is a straight, level stretch of road. The lanes for traffic are marked by yellow lines painted on the pavement, and between the north and south traffic lanes there is a center dividing strip, about three feet in width, with raised concrete cleats. Each traffic lane is approximately eleven feet wide, and there are graveled shoulders on each side of the road, also about eleven feet in width.

This straight stretch of roadway, running in a general northerly and southerly direction, is unbroken except for one intersection, known as the Kellogg Park intersection ('A' avenue), which is located about three fourths of a mile north of Milwaukie. Traffic at said intersection is controlled by electrically-operated traffic signals, with a signal hanging over the center of the road and with signals on the east and west shoulders. These signals show red, green and amber lights to traffic proceeding on McLoughlin boulevard.

Defendants were operating their automobile in a northerly direction upon said highway from Milwaukie toward Portland when the accident happened. Along the east side of this stretch of highway, and facing northbound traffic, are two official state highway signs, one approximately three tenths of a mile south of the Kellogg Park intersection stating 'Speed 35 Miles' and the other about 450 feet south of said intersection stating 'Traffic Signal Ahead'.

There are no buildings in close proximity along the shoulders of the road from Milwaukie to the signal lights at the Kellogg Park intersection. It was Saturday night and New Year's Eve, and the traffic moving both ways along the highway was heavy. The night was dark; it was raining; and visibility was poor.

A few minutes prior to the happening of the accident, an automobile driven by one Edward I. Engel had been proceeding north on McLoughlin boulevard; and when it reached a point between the traffic sign reading 'Traffic Signal Ahead' and the Kellogg Park intersection, a mechanical failure occurred and it came to a stop on the inside lane for northbound traffic, about 100 feet south of the intersection. All lights on the Engel car were burning, including two red tail lights (one on each rear fender) and one white light over the rear license plate. Engel and his passenger Hasbrouck got out of the car and walked to the rear thereof to flag approaching traffic. Several northbound cars passed the stalled Engel vehicle, using the outside traffic lane.

While the Engel car was in this position, defendant Daren B. Nash drove the Chrysler automobile north along McLoughlin boulevard from Milwaukie, using the inside lane, at a rate of speed estimated to be 55 miles per hour. Engel noticed the approach of the Chrysler car as it entered the straightaway just north of Milwaukie. As it came closer, he waved to it in an endeavor to stop it or cause it to be driven into the outside lane, but to no avail. Engel and Hasbrouck were compelled to run to the shoulder of the road as a matter of self-protection. Without any slackening of speed or change of direction, and without any attempt to get into the outside lane, the defendant Daren B. Nash drove the Chrysler headlong, and with great force, into the rear end of the Engel car. That vehicle was knocked forward for a distance of approximately 100 feet to a point about one car length south of the intersection signal light, before it came to a stop with the Chrysler directly behind and jammed into the rear of it. Just before the collision, there were no other cars immediately in front of the Chrysler in the outside lane, nor was the defendant Daren B. Nash in the act of overtaking and passing another vehicle. The record is wholly silent as to whether the signal lights at the intersection showed 'red', 'green' or 'amber' immediately prior to the accident.

Defendant Daren B. Nash testified that he did not see any lights on the Engel car prior to the crash, nor did he know of the presence of that vehicle on the highway until his front lights shone on the rear bumper thereof. He was driving the Chrysler with the lights on low beam. He offered no testimony as to the signal lights, but he did testify that he was aware of the presence of the highway warning signs and the nature thereof, though he could not say that he paid any particular attention to them that night.

Defendants' motion for a new trial was based upon a large number of alleged errors committed by the trial court, particularly with reference to certain instructions given to the jury.

No useful purpose would be served by setting out in detail the grounds of the motion. We have carefully examined all of the court's instructions, giving special attention to those objected to by defendants. To say the least, the instructions were misleading and confusing, and some of those to the giving of which defendants excepted were clearly erroneous and prejudicial. For example, the court told they jury:

'I instruct you however that prima facie as such term is here used in these instructions, means, that if plaintiff's evidence sufficiently establishes to your satisfaction that the defendant Daren B. Nash, did operate said Chrysler sedan at a speed in excess of thirty-five miles per hour, such evidence, if not refuted, will be conclusive that the defendant was guilty of gross negligence. * * *'

Traveling in excess of a 'designated speed' is not necessarily a violation of the law. It becomes so only when, while so traveling, the basic rule as to speed is violated; that is to say, it is the violation of the basic rule as to speed, and not merely traveling in excess of a designated speed, that is unlawful. Moreover, a violation of the basic rule does not, in and of itself, constitute gross negligence, although it does constitute ordinary negligence as a matter of law. Combined with other conditions, a violation of the basic rule may be considered upon the question of gross negligence; but it certainly would be an unusual case, indeed, where speed, in and of itself, would constitute gross negligence within the meaning of the law. Under the statute, traveling in excess of a designated speed is merely prima facie evidence of a violation of the basic rule. Obviously the above instruction was erroneous. § 115-320(a, b), O.C.L.A., as amended by ch. 458, Oregon Laws 1941; Rauw v. Huling, Or., 259 P.2d 99; Senkirik v. Royce, 192 Or. 583, 592, 235 P.2d 886.

It is well established by the decisions of this court that where error has been committed, a motion for a new trial is addressed to the sound discretion of the trial court and will be reviewed only for a manifest abuse of discretion; and it requires a much clearer case or much stronger showing to authorize a reversal of an order granting a new trial than it does to reverse an order overruling a motion therefor. Clark v. Fazio, 191 Or. 522, 528, 230 P.2d 553. The trial court did not err in granting a new trial. This conclusion disposes of the questions raised by plaintiff's appeal.

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