Clement v. Cummings
| Decision Date | 06 November 1957 |
| Citation | 317 P.2d 579,212 Or. 161 |
| Parties | F. H. CLEMENT, Administrator of the Estate of Opha Clement, Deceased, Respondent, v. Earl CUMMINGS, Appellant. |
| Court | Oregon Supreme Court |
Allan G. Carson, Salem, argued the cause for appellant. On the brief were Carson, Carson & Gunnar and Douglas L. Hay, Salem.
Roy Kilpatrick, Canyon City, argued the cause for respondent. On the brief were Lytle, Kilpatrick & Shroeder, Vale, Marsh, Marsh & Dashney, McMinnville, and Edward L. Clark, Jr., Salem.
Before PERRY, C. J., and ROSSMAN, BRAND and McALLISTER, JJ.
This is an appeal by the defendant from a judgment in favor of the plaintiff which was entered in an action to recover damages for the death of one Opha Clement, of whose estate the plaintiff is administrator. The judgment is based upon a verdict. The action, which culminated in the entry of the challenged judgment, charged that the defendant, a deputy sheriff of Grant county, drove his car negligently and that, as the proximate result thereof, death was brought to the aforementioned Opha Clement, an occupant of the car. Mrs. Clement, the decedent, was riding in the car as a prisoner of the defendant, who was conveying her to the Oregon State Penitentiary in Salem. The action was brought for the benefit of the decedent's widower and minor children. The latter, four in number, range in age from six to eleven years.
The fatality occurred April 2, 1954, at approximately 4:20 p. m. upon the North Santiam highway immediately west of Detroit dam. The car was traveling westerly. The trip had begun in Canyon City and its destination was Salem. The car had just passed Detroit dam when it veered to the left side of the roadway and then plunged down an embankment. In addition to the defendant and Mrs. Clement, the car had two other occupants. One was Mrs. Clement's brother, Oscar Holland, who, like the deceased, was a prisoner of the defendant on his way to the Oregon penitentiary; the other was a Mrs. Patricia Elliott, a deputy sheriff of Grant county, who was serving as matron in charge of Mrs. Clement upon the trip. Mrs. Elliott had been hospitalized for two weeks prior to the day of the trip and intended to continue on into Portland after the prisoners were delivered to the penitentiary.
Mrs. Clement and her brother were seated in the rear seat of the automobile. She sat behind the defendant and her brother was to her right. Mrs. Elliott, the matron, was to the right of the defendant in the front seat. Neither of the prisoners was handcuffed nor in any way shackled.
The North Santiam highway is of standard construction and is hard surfaced. It has shoulders which are made of small crushed rock. The north shoulder, being the one which is material to the issues before us, is four to six feet wide and about one inch lower that the pavement. Beyond the shoulder and parallel to it there runs a ditch, three feet deep, which receives tailings that drop from the adjacent embankment. On the day of the accident rain had fallen, but at the time of the fatality visibility was good.
We have mentioned the fact that after the defendant's car had passed Detroit dam it crossed to the left side of the roadway and then pitched down a declivity. The drop was 200 feet. In the disaster Mrs. Clement lost her life. The defendant and Mrs. Elliott sustained injuries of such severity that each was rendered unconscious and, at the trial, could not recall any of the incidents that occurred immediately before or during the misadventure. Holland, who also received severe injuries, remembered events that transpired prior to the fatal plunge and, as a witness for the plaintiff, narrated them. We shall now give effect to his and the other testimony as we recount the evidence.
Holland estimated the car's speed as 50 miles an hour at about the time of the fatality. Shortly before the fatal plunge, the car began to move onto the north shoulder. At that point a curve in the highway is encountered. The car continued on the gravel shoulder for at least 300 feet. By that time it had reached the very edge of the adjacent ditch. Upon that development, according to Holland, the defendant turned the steering wheel sharply to the left, whereupon the car veered across the highway and leaped over the edge into the adjacent declivity. Holland's testimony indicated that as the car ran upon the shoulder, turned to the left and crossed the pavement, the defendant did not slacken its speed.
The evidence indicates that Mrs. Elliott, who, as we have indicated, had been recently hospitalized, was feeling ill during the trip. Alternately she sat upright and lay in the seat. According to Holland, Mrs. Elliott, at the time of the accident, was lying in the seat with her head on the defendant's legs.
Holland swore that no cars were in sight either in front or behind the defendant's car at the time of the accident. He declared that no conversation was in progress and that there was nothing upon the pavement to interfere with the car's safe movement. The record indicates that the car was comparatively new and had no mechanical defects.
The complaint charged negligence in the following particulars: (1) dangerous rate of speed; (2) failure to maintain proper control over the car; (3) permitting Mrs. Elliott to rest her head in the defendant's lap; and (4) failure to maintain a proper lookout.
The defendant-appellant presents fourteen assignments of error.
The first assignment of error asserts that the trial judge erred when, over the defendant's objection, he permitted a witness for the plaintiff, who was project engineer of the Detroit dam, to testify that at 3:45 p. m. of the day of the accident he drove over the place where, three-fourths of an hour later, the accident happened and observed no rock or gravel on the pavement. 'It was all clear,' so the witness testified. According to his further testimony, he returned to the same place forty-five minutes later, after the accident had happened, and found this condition:
The witness described a depression, approximately two inches deep and three feet long, on the north shoulder leading to the pavement at the point where the path of strewn crushed rock began. At the other end of the trail of strewn rock, that is, at the south edge of the pavement, he looked down the declivity and saw the defendant's battered automobile. The jury could reasonably have inferred from the testimony of this witness that the car which traveled on the north shoulder and made the three-foot depression was the one which scattered the rock upon the pavement. Such an inference would have been in harmony with Holland's testimony. The witness' testimony that three quarters of an hour before the accident the road was clear of rock, but bore the aforementioned trail of crushed rock immediately after the fatality, could warrant an inference that the rock was flung on the pavement by the defendant's automobile as it rushed from the shoulder and veered across the pavement at a rapid rate of speed.
The defendant's objection, which underlies the assignment of error now under consideration, challenges the admissibility of only the part of the above-mentioned testimony which indicated that forty-five minutes before the accident the pavement in the vicinity of the fatality was free of gravel and crushed rock. The defendant's objection was couched in these words, 'too remote.' Wigmore on Evidence, 3d ed., § 437, states that when remoteness is the basis of objection 'the matter should be left entirely to the trial court's discretion.' The section was cited approvingly in Tracy and Baker v. City of Astoria, 193 Or. 118, 237 P.2d 954. We believe that the objection of remoteness is normally subject to the discretion of the trial judge, and are aware of no reason for believing that the challenged ruling abused the court's discretion. The assignment of error is dismissed as lacking in merit.
Defendant's second and third assignments of error, which assert that the trial court committed error in denying defendant's motions for a nonsuit and a directed verdict, present the questions of the sufficiency of the evidence of negligence and of proximate cause to support the verdict which the jury returned.
The jury, according to our belief, could have found that, in attempting to return to the paved roadway from the shoulder at a speed of 50 miles per hour, the defendant operated his automobile at a negligent rate of speed, when due heed is paid to the surface, grade, width of the highway and other attendant conditions. Prauss v. Adamski, 195 Or. 1, 244 P.2d 598. We also believe that the jury could have found that, in returning to the paved highway from the shoulder, which was one inch lower, at a speed of 50 miles per hour, the defendant was responsible for conditions which rendered him unable to keep his automobile under control. We have in mind the third specification of negligence which is based upon ORS 483.538, reading as follows:
'(1) No driver shall operate a vehicle:
* * *
* * *
'(b) When he has in his lap * * * another person, baggage or encumbrance which prevents the free and unhampered operation of such motor vehicle.'
The word 'lap' is defined in Webster's New International Dictionary, 2d Ed., as 'The part of the clothing that lies on the knees, thighs, and lower part of the body when one sits down; hence, that part of the person thus covered.'
We do not believe that we would be warranted in considering the...
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