Foster v. Farra

• Decision Date: 23 February 1926
• Citation: Foster v. Farra, 117 Or. 286, 243 P. 778 (Or. 1926)
• Parties: FOSTER v. FARRA ET AL.
• Court: Oregon Supreme Court

243 P. 778

117 Or. 286

FOSTER v. FARRA ET AL.

Supreme Court of Oregon, En Banc.

February 23, 1926

Appeal from Circuit Court, Josephine County; C. M. Thomas, Judge.

Action by Eva Foster, a minor, by M. J. Foster, guardian ad litem against Walter H. Farra, Herman Farra, and Effie Farra. From a judgment for plaintiff against the defendants Walter H Farra and Herman Farra, they appeal. Affirmed.

See also, McCallister v. Farra, 243 P. 785.

This is an action for damages for personal injuries. The case was tried before the court and a jury, and a verdict rendered in favor of plaintiff and against defendants Walter H. Farra and Herman Farra. From a resulting judgment these two defendants appeal. As no judgment was rendered against defendant Mrs Effie Farra, we will omit her name in stating the case.

The gist of the allegations of the complaint is:

That at the time of the alleged injury the defendant Walter H. Farra was the owner of a 1920 model Dodge touring automobile purchased by him for the convenience, pleasure, business, and family purposes of each of the defendants. That on and prior to the 23d day of February, 1922, Walter Farra negligently and wantonly permitted said automobile to get and remain in a bad state of repairs, in that the foot brake became unservicable and the emergency brake would not work, and the steering gear was difficult to operate, and was defective. That Walter H. Farra, well knowing of said defects, and well knowing that the operation of the car by any one on the streets and highways was dangerous to the lives of pedestrians and others, wantonly, negligently, and carelessly permitted Herman Farra, the minor son, to take the automobile and drive the same in said defective condition over the streets of Grants Pass, Or., knowing that said minor could not operate the same in its defective condition with safety to the public.

On the 23d day of February, 1922, Eva Foster, a child 11 years of age, having just come from an entertainment at the Rivoli Theater in Grants Pass, Or., while standing on the sidewalk a few feet from the theater, was violently struck by, and impaled upon, the front of said automobile, carried and mashed against the concrete side of said Rivoli Theater, and severely injured. That the car owned by Walter Farra was then driven and operated unlawfully, wantonly, recklessly, and carelessly by the said Herman Farra for the use and purposes for which it was intended. That Herman Farra, while driving said automobile down Sixth street, suddenly turned to the left near said theater, in wanton and reckless indifference to plaintiff's rights, and, despite the crowd that was crossing the street at that time, did not and could not lessen his speed by the application of brakes, but whirled suddenly and bore down upon the said Eva Foster, who was struck by the dangerous agency without warning or opportunity to escape, and injured to her damage.

The defendant Walter Farra, answering, admits that Herman Farra is a minor son of defendants Walter Farra and Effie Farra, and at the time of the accident the parties were living together as a family, and this defendant exercised parental control over his son, Herman Farra.

Defendant admits the ownership of the car, and that the same was bought by him for his "convenience and for business purposes," and denies most of the other allegations of the complaint, except that the defendant has been informed that the said Eva Foster was struck by the automobile and sustained some injuries.

In a further and separate answer this defendant avers that, upon the occasion referred to, Herman Farra was using the car for a purpose of his own, "and was not using said car for any business, convenience, pleasure, or other purpose of this answering defendant." Appellants state that the separate answers filed by Effie and Herman Farra are omitted as unnecessary in the consideration of this appeal. Plaintiff replied to the separate answers, putting in issue the new matters thereof.

James T. Chinnock, of Grants Pass, and Gus Newbury, of Medford, for appellants.

O. S. Blanchard, of Grants Pass, for respondent.

BEAN, J. (after stating the facts as above).

It is stated in defendants' brief, among other things, in substance as follows:

The defendant Walter H. Farra was in 1922 the owner of a Dodge touring car. He lived upon a ranch about 10 miles south of Grants Pass. His son, Herman Farra, was at the time of the accident a minor, aged 17 years. Walter H. Farra purchased the car for business purposes. It was contended by this defendant that there is no evidence that this car was purchased or kept for other than business purposes, or that it was kept or ever used for so-called family purposes or pleasures.

On February 22d, the defendant Herman Farra went to the ranch and asked his father for the use of the car to take some of his boy friends to a ball game at Murphy, about 7 miles south of Grants Pass, and near the Farra ranch. The father gave his permission, as he claims, with the understanding that when the ball game was over Herman would bring the car home. Herman then drove the car to the ball game, and that night went into Grants Pass, where he was attending high school, and, after school the next day invited two girl friends to go with him in the car to the Rivoli Theater in Grants Pass.

The Rivoli Theater is situated on the northeast corner of Sixth and E streets in Grants Pass. Herman was driving the car south on Sixth street, toward the intersection of Sixth and E streets. As he approached the intersection a large crowd of people came out of the theater and commenced crossing the street. "He commenced to turn the car at the intersection, held out his hand to signal his intention to turn, sounded his horn, and slowed up; and in the course of this turn the accident occurred."

The testmiony tended to show that Herman drove down the main street "pretty fast," and, instead of passing the Rivoli Theater, as many expected, suddenly turned to the left, and crashed into the crowd, barely missing some, scattering all, knocking down several, turned obliquely to the left again, jumping the curb next to the Rivoli Theater, and impaled the plaintiff on the bumper, mashing her against the concrete side of the theater building, breaking her bones, tearing ligaments, and disfiguring her for life. She was struck while on the sidewalk.

The testimony also tended to show that there was no foot brake on the car, and that the emergency brake was of little effect, and was not sufficient to control the car, and would not stop the car within a reasonable distance; that the steering gear was defective, and it was difficult to turn the car; and that the car had been in that condition for 2 or 3 days. When they would attempt to put on the brakes and stop the car, it would shoot ahead. Herman Farra testified:

"I didn't notice the show was let out and they crowded out into the street and that startled me some, and I started to put on the brakes to stop the car, and it went on and hit the girls."

It will be seen that the issues involve two allegations of negligence; the defective condition of the car, and also the operation of the same at the time of the accident.

It will, perhaps, be better to notice the law in regard to both features of the case. Chapter 371, section 3, subdivision 1, of Gen. Laws of Oregon 1921, p. 714, provides as follows:

"Equipment. 1. Brakes.--Every motor vehicle, except motorcycles, operated or driven upon the highways of this state shall be provided with two sets of brakes, operating independently, sufficient to control the vehicle at all times. Motorcycles shall have at least one brake capable of complying with the foregoing requirement."

Subdivision 5(c) of the same section provides in part thus:

"The failure on the part of the owner thereof to equip any such motor vehicle, trailer, semitrailer, motorcycle or other vehicle, as provided herein, shall be prima facie evidence of an intent to violate the provisions of this act."

Section 2 of the same act (subdivision 18), reads thus (page 712):

"No vehicle shall be moved, run or operated on the roads, streets or highways of this state by any person unable to control and properly operate the same with due regard to the safety of the public and other vehicles; provided, that in all cases any person in a state of intoxication is deemed conclusively to be unable to control and operate the same." The undisputed evidence in this case shows that the automobile, which was the instrumentality which caused the injury complained of, was not equipped with two brakes sufficient to control the vehicle at the time of the accident, and that the defendant Walter H. Farra knew, or ought to have known, of the defective condition of the machine. The statute, in effect, condemns the automobile as a dangerous instrumentality when used upon the streets or highways of the state.

In permitting his son, Herman Farra, to use the automobile in the condition it was in at the time of the accident, the defendant Walter H. Farra violated both the letter and the spirit of the statute, and was guilty of negligence. An automobile, which is knowingly unmanageable, is such a dangerous instrumentality that it is negligence to allow its use on the highway. Texas Co. v. Veloz (Tex. Civ. App.) 162 S.W. 377; Allen v. Schultz, 181 P. 916, 107 Wash. 393, 6 A. L. R. 676; Moore v. Roddie, 180 P. 879, 106 Wash. 548; Gardiner v. Solomon, 75 So. 621, 200 Ala. 115, L. R. A. 1917F, 380.

In Parker v. Wilson, 60 So. 150, at page 153, 179 Ala. 361, 371 (43 L. R. A. [ N. S.] 87), it is said:

"In the case of a mere permissive use, the liability of the owner would rest, * * * upon the combined negligence of the owner and the driver, negligence

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