Callander and Stone v. Brown

• Decision Date: 01 April 1947
• Citation: 178 P.2d 922,181 Or. 279
• Parties: CALLANDER <I>v.</I> BROWN ET AL. STONE <I>v.</I> BROWN ET AL.
• Court: Oregon Supreme Court

181 Or. 279

178 P.2d 922

CALLANDER

v. BROWN ET AL. STONE

v. BROWN ET AL.

Supreme Court of Oregon.

Argued March 5, 1947.

Affirmed April 1, 1947.

Rehearing denied June 10, 1947.

Appeal and error — Evidence on appeal

1. On review of a judgment for defendant notwithstanding verdict for plaintiffs, evidence must be viewed most favorably to plaintiffs.

Automobiles — Negligence — Evidence

2. Evidence concerning motorist's failure to see an approaching truck and yield to it the right of way when motorist was attempting to make a left turn presented a question of fact as to whether the motorist was guilty of ordinary negligence, but was insufficient to raise a question of gross negligence necessary to a recovery, against motorist by guests for injuries received in collision with truck.

Automobiles — Negligence — Jury

3. Proof of ordinary negligence on part of a motorist, without additional proof that motorist was indifferent to the rights of others, which characterizes gross negligence, does not warrant submission to a jury of issue of gross negligence in an action by guests against motorist to recover for injuries sustained in a collision.

Trial — Negligence — Pleading

4. In action by guest against motorist for injuries sustained in a collision, a finding for guest of gross negligence could not be based on testimony of driver of other vehicle involved in collision that motorist was in wrong lane of traffic for a left-hand turn and gave an incorrect signal when there was no such charge in the complaint.

Judgment — Directed verdict

5. The fact that circuit judge, in denying a motion for a directed verdict, expressed opinion that evidence as to a certain defendant was sufficient to take case to jury, did not preclude judge from thereafter granting such defendant a judgment notwithstanding the verdict.

WINSLOW, Justice pro tem, and BELT, J., dissenting.

                  See 5 Am. Jur. 878, 880; 49 C.J.S., Judgments, 60
                

Appeals from Circuit Court, Clackamas County.

EARL C. LATOURETTE, Judge.

Glenn R. Jack, of Oregon City (Butler & Jack, of Oregon City, on brief), for appellants.

Richard Devers and Hugh L. Biggs, of Portland (with Hart, Spencer, McCulloch & Rockwood, of Portland, on brief), for respondent.

Before ROSSMAN, Chief Justice, and LUSK, BELT, BAILEY and WINSLOW, Justices.

AFFIRMED. REHEARING DENIED.

LUSK, J.

These are appeals in two personal injury cases which were consolidated for trial in the Circuit Court. The plaintiffs Kathryn A. Callander and Elizabeth J. Stone were guest passengers in a Willys-Knight automobile driven by the defendant Brown, which sustained a collision with a truck driven by the defendant Allen. There were verdicts for both plaintiffs against both defendants. Thereafter the court, on motion, entered judgment for Brown notwithstanding the verdict, and from that judgment the plaintiffs have appealed. The sole question for decision is whether there is evidence in the record of gross negligence on the part of the defendant Brown.

The accident occurred in Oregon City at about eight o'clock on the evening of June 30, 1945. Shortly before, Brown, who was well acquainted with one of the plaintiffs, who are sisters, chanced upon them in a restaurant in Oregon City where they were having their dinner, and they accepted his invitation to drive them to the home of another sister at Gladstone, a few miles to the north. Their intended route was north on Washington Street to Fourteenth Street, thence west on Fourteenth to a main highway known as the Super Highway, thence north again to their destination. On arriving at the intersection of Washington and Fourteenth Streets Brown stopped his car and then moved slowly out into the intersection, making a left-hand turn to go west on Fourteenth Street. At approximately the center of the intersection his car sustained a collision with the truck of the defendant Allen, which was being driven south on Washington Street and had entered the intersection from the north. The plaintiffs were thrown from the Brown automobile and injured.

The plaintiffs charged Brown with gross negligence in that he (1) failed to keep a lookout; (2) saw or should have seen the truck driven by defendant Elmer A. Allen approaching said intersection, and saw or should have noticed that said truck was being driven at a high and dangerous and reckless rate of speed, and with said knowledge entered said intersection when a collision was imminent; and (3) failed to yield the right-of-way, and, in the face of impending danger, attempted to make a left-hand turn.

There is evidence of the following facts:

At the time of the accident it was daylight, the sun was shining, and the pavement dry. Washington Street, which runs north and south, is a through street, forty feet in width from curb to curb. Fourteenth Street, which intersects it, is the same width. A short distance east of Washington Street, Fourteenth Street comes to a dead end. Washington Street, as it approaches Fourteenth from the south, is on a steep grade. At the intersection it levels off. There is heavy traffic at the intersection coming off of Fourteenth Street from the west into Washington Street, and, likewise, leaving Washington Street to go west on Fourteenth Street.

1. Brown, with his two passengers, brought his car to a stop at the foot of the grade and back of the curb line, and waited there until three cars coming from the west on Fourteenth Street had stopped at the west side of Washington Street and proceeded around the intersection and north on Washington Street. Brown then, according to his testimony, "looked and went on around" (i.e., to his left), after having first given a signal for a left-hand turn. There was a clear view to the north for a distance of 1,000 feet or more. But Brown testified that he did not see the defendant Allen's truck nor a station wagon, which, according to some of the evidence, preceded the truck into the intersection and turned west on Fourteenth Street. Where the truck was immediately before Brown started his car again is in dispute. A disinterested witness testified that it was then about three hundred feet from the intersection going thirty-five miles per hour, and that, before entering the intersection, it speeded up to forty to forty-five miles per hour. Allen testified that he was only thirty feet from the intersection at the time that Brown started, and that his speed was never over twenty-five miles per hour, while, according to the testimony of another witness, it was as low as fifteen miles per hour. The uncontradicted evidence is that Brown's speed in the intersection did not exceed four miles per hour. Brown's car traveled approximately thirty-five feet from his starting place to the point of collision; Allen's truck anywhere from four to ten times as far during the same period, according to the view that one might take of the evidence as to Allen's speed. We, of course, cannot determine the fact. Our decision must be based on the evidence most favorable to the plaintiffs, which, in the view of their counsel, seems to be that Allen's truck was very close to the intersection when Brown began his movement, and that the speed of the truck was about fifteen miles per hour.

As stated, Brown testified that he did not see the truck before the collision, and, when asked if he knew how the truck and his car came together, he answered, "All I know is, that I was hit, and that is all I do know."

The plaintiff, Elizabeth J. Stone, testified that Brown drove very carefully and very slowly down the Washington Street hill; that he was keeping a lookout straight ahead; that there was no conversation among the occupants of the car; that he came to a full stop before entering the intersection and that he put his hand out of the window before starting again. Mrs. Stone was seated in the front seat on the right side of the car, her sister in the center. She testified that she saw the approaching truck, and said to her sister, "We are going to get hit, you better get your purse up", and that Mrs. Callander said, "It is in the back seat." Mrs. Stone, according to her testimony, had her own purse in her hand, and put it in front of her face. She was unable to fix the location of the Brown car at the time she saw the truck, but, when asked whether it was "just a flash" from the time she saw the truck until the impact, she answered, "That is it." Mrs. Callander, who remembered nothing of the circumstances of the accident except that they stopped at Fourteenth Street and let the traffic go by, testified that she did not hear the statement of her sister, and Brown testified that he did not hear it.

The defendant Allen testified that he saw Brown's car come to a stop at the foot of the hill when Allen was about 200 feet north of the intersection; that Brown was then in the right-hand lane of travel not more than a foot from the curb on the east side of Washington Street instead of near the center of the street as Brown testified; that he saw Brown give a signal for a right-hand turn as though he were going east on Fourteenth Street, and he thought Brown intended to do so; that he (Allen) was then thirty feet from the intersection, and thereafter looked to the right watching a Ford car which had stopped in Fourteenth Street preparatory to entering the intersection from the west; and that he next saw Brown's car when it was about four feet away; that he applied his brakes, but that it was too late then to avoid a collision.

The evidence indicates that the point of collision was in the northwest quarter of the intersection quite close to the center, and that the right front fender and wheel of the Brown car came into contact with the left front tire and fender and left end of the bumper of the truck. The Brown car, badly damaged, was shoved a distance equal to about its own width, and was facing south when it came to rest. The truck moved on further to the south, stopping close to the...