Cockerham v. Potts

• Decision Date: 28 March 1933
• Citation: 20 P.2d 423,143 Or. 80
• Parties: COCKERHAM v. POTTS et al.
• Court: Oregon Supreme Court

20 P.2d 423

143 Or. 80

COCKERHAM v. POTTS et al.

Supreme Court of Oregon

March 28, 1933

Department 2.

Appeal from Circuit Court, Yamhill County; Arlie G. Walker, Judge.

Action by J. T. Cockerham, administrator of the estate of Joseph Cockerham, Jr., against Bernard F. Potts and others. From a judgment in favor of named defendant, plaintiff appeals, and from judgment in favor of plaintiff, defendants J. W. Lorett and wife appeal.

Affirmed.

This is an action for personal injuries brought by J. T. Cockerham as administrator of the estate of Joseph Cockerham, Jr. deceased, for damages suffered by the estate due to the death of said Joseph Cockerham, Jr., deceased. The cause was tried to the court and a jury. A verdict was rendered in favor of defendant Bernard F. Potts and in favor of plaintiff, and against defendants J. W. Lorett and Mary Lorett, his wife. Defendants Lorett appeal. The plaintiff appealed as to the judgment in favor of Bernard F. Potts.

It is alleged that the death which occurred on November 20, 1930 was caused by the gross negligence and reckless disregard of the safety of said deceased on the part of Lucille Lorett and the negligence of defendant Bernard F. Potts. The specific allegations of negligence charged against Lucille Lorett are as follows:

"IX. That at said time and place, the said Lucille Lorett was grossly careless, reckless, and negligent in the following particulars, to wit:

"(a) In that at said time and place, she wholly failed and neglected to keep or maintain a proper or other lookout for other traffic using said McMinnville-Dayton road, and particularly for the Chevrolet truck of the Defendant Bernard F. Potts.

"(b) In that at said time and place, she wholly failed and neglected to have and keep said Ford automobile under proper or any control.

"(c) In that at said time and place, she operated and drove said Ford automobile directly in front of said Chevrolet truck of the Defendant, Bernard F. Potts, when she saw or should have seen said Chevrolet truck of the Defendant Bernard F. Potts.

"(d) In that at said time and place, she operated and drove said Ford automobile carelessly and heedlessly in wanton reckless disregard of the rights or safety of others, and particularly the safety of the said Joseph Cockerham, Jr.

"(e) In that at said time and place, she operated and drove said Ford automobile without due caution and circumspection and in such a manner as to endanger the life of the said Joseph Cockerham, Jr.

"(f) In that at said time and place, when intending to turn to the left at said intersection of said McMinnville-Dayton road, and said gravelled road, she wholly failed and neglected to approach such intersection in the lane of traffic to the right of and nearest to the center line of the gravelled road, but operated and drove said Ford automobile on the left hand side of said gravelled road in approaching said intersection; and in turning left into said intersection, she wholly failed and neglected to pass beyond the center of the intersection, and to pass to the right thereof before turning said Ford automobile to the left, but operated and drove said automobile considerably to the left of the center of said intersection and near to the northwest corner thereof, driving said Ford automobile on the left hand side of said McMinnville-Dayton road directly in front of the approaching Chevrolet truck of the defendant Bernard F. Potts.

"X. That as a direct and proximate result of said careless, reckless and negligent acts and conduct of the said Defendant, Bernard F. Potts and the said Lucille Lorett, as alleged, and not otherwise, said collision occurred, and as a direct and proximate result thereof and due solely to the careless, reckless and negligent acts and conduct of the said Defendant, Bernard F. Potts, and the said Lucille Lorett, as alleged, and not otherwise, the said Joseph Cockerham, Jr., instantly met his death."

At the time and prior to the accident the Cockerham boy, aged nine years, was staying with his grandparents, the defendants J. W. Lorett and Mary Lorett, his wife. The Lorett home is on a graveled road which leads from there in a general easterly direction, connecting with the concrete Dayton-McMinnville Highway at right angles at a point approximately south of Dayton. Along the graveled road on both sides there are fences which are approximately 40 feet apart near the concrete highway. The concrete highway is about 16 feet wide, and the graveled road is about 12 feet wide. The Dayton-McMinnville Highway is not a through thoroughfare, requiring a person approaching and entering said road to first stop his vehicle before traveling thereon.

The testimony tended to show as follows: The automobile in which Joseph Cockerham, Jr., was riding was owned by his grandparents, J. W. Lorett and Mary Lorett. The daughter Lucille Lorett, age 21 years, was a school teacher and employed as such at the Unity school. It was her custom to take the automobile in the morning and drive to school, returning in the evening. On the morning of the accident Lucille Lorett took the car, as was her custom, with the knowledge and consent of J. W. Lorett. She took Joseph Cockerham, Jr., and they proceeded for a distance, where she took in Mr. Hodge and his daughter. The automobile then proceeded toward the Dayton-McMinnville Highway. Lucille Lorett, when near the Dayton-McMinnville Highway, on which it would reasonably be expected there would be more traffic than on the graveled highway, drove the Ford car on the left side of the graveled highway and onto the paved portion of the Dayton-McMinnville Highway, at the time the milk truck, heavily loaded with milk, which was owned and operated by defendant Bernard F. Potts, was proceeding in a general southerly direction toward McMinnville at a rate of speed of 25 to 30 miles per hour. When the Ford car was partially on the paved highway, somewhere from 3 to 5 feet, a collision took place between the Ford automobile and the milk truck, as a result of which the Ford car was thrown a distance of some 60 to 80 feet, landing on its side on the west of the Dayton-McMinnville Highway and on the top of the deceased, Joseph Cockerham, Jr. Lucille Lorett was thrown across the highway from the point where the Ford stopped and to the rear of the milk truck, which had skidded a distance of some 60 feet, turned nearly around, striking the bank, and was off the road on the east side of the Dayton-McMinnville Highway. Mr. Hodge was thrown clear of the Ford car, toward McMinnville, and landed on the same side of the Dayton-McMinnville Highway as the Ford. Both Mr. Hodge and Miss Lorett were unconscious and suffered such severe injuries that at the time of the trial in McMinnville, on March 16, 1931, neither of them had any recollection of the events leading up to the accident, and did not even remember leaving their respective homes that morning. Miss Lorett was unconscious for four days.

The testimony further tended to show that at the time of the accident the intersection was partially obstructed by brush along near the fence on the left side of the graveled highway going east, and on the west side of the Dayton-McMinnville Highway; that the view of a person on the macadam or graveled highway was obstructed or partially obstructed as far as traffic was concerned on the Dayton-McMinnville Highway by brush, trees, and undergrowth, for a distance of more than 200 feet, and that the view from the Dayton-McMinnville Highway of traffic on the graveled road is obstructed more than 200 feet on the paved highway traveling from Dayton to McMinnville.

In regard to the condition of the road, Mr. Glen Macy, the coroner, testified it was possible for a person approaching the concrete highway to see a car approach from Dayton, but that there was some obstruction; that he then went down the concrete highway toward Dayton and looked back toward the gravel road; that it was possible for him to see his own car parked on the side of the graveled road; that there was some obstruction at the corner where a wooden post was at the north edge of the graveled highway. The testimony indicated that defendant Potts did not see the Lorett car until just as it came on the pavement right in front of him, on account of the brush obstructing the view; that the view from the graveled road on the concrete highway and from the concrete highway onto the graveled road was practically the same, as the roads were approximately on the same level. Mr. Potts testified that the speed of his car, when within 100 feet of the corner, was about 30 miles per hour; that he looked to the right when about 150 feet from the intersection, and again when 50 or 60 feet from the corner, and saw no one; that when he hit he was going between 25 to 30 miles per hour; that Miss Lorett "cut the corner," and that the collision occurred at a point, as marked on the map in evidence, approximately 10 feet from an extension of the north line of the 40-foot graveled road right of way; that the Lorett car was going 25 miles per hour, as it came around the corner. It is indicated that the graveled road or portion at the intersection, beginning approximately 20 feet west of the west edge of the concrete pavement of the Dayton-McMinnville Highway, is widened to a width of approximately 65 feet at the edge of the pavement; the outer edges of the widened portion being curved.

In action for death of automobile passenger, negligence of driver of another vehicle held for jury.

W. H. Maguire, of Portland (Dey, Hampson & Nelson, of Portland, and Frank Holmes, of McMinnville, on the brief), for appellants Lorett.

Vinton & Marsh, of McMinnville, for appellant Cockerham.

B. A Kliks, of McMinnville, for respo...