Frame v. Arrow Towing Service

• Decision Date: 16 February 1937
• Citation: 64 P.2d 1312,155 Or. 522
• Parties: FRAME v. ARROW TOWING SERVICE et al.
• Court: Oregon Supreme Court

64 P.2d 1312

155 Or. 522

FRAME v. ARROW TOWING SERVICE et al.

Supreme Court of Oregon

February 16, 1937

Department 1.

Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.

Action by Douglas Frame against the Arrow Towing Service, a corporation, and others. From the judgment, the named defendant appeals.

Reversed and remanded for new trial solely as against the named defendant.

Arthur I. Moulton, of Portland, for appellant.

Charles R. Spackman, Jr., of Portland (W. Elmer Ramsey, of Portland on the brief), for respondent.

BELT Justice.

This is an action to recover damages for personal injuries alleged to have been caused by the negligence of the defendants. The defendants Alfred Pietila and John H. Pietila made no appearance and a judgment by default was entered against them. A verdict for $1,776.81 was returned against the defendant Arrow Towing Service, a corporation and one in favor of the defendant Mary Elizabeth Menefee. Defendant Arrow Towing Service appeals.

The motions of the defendant appellant for a directed verdict and an involuntary nonsuit require, in accordance with well-established legal principles, a brief statement of facts in the light most favorable to the plaintiff. In determining whether the court erred in submitting the cause to the jury the plaintiff is entitled to the benefit of every reasonable inference which may be drawn from the evidence. The court is not concerned with questions of fact upon which the evidence is in conflict.

At about 11:30 on the night of May 18, 1935, one Potter was driving an automobile owned by the defendant Mrs. Elizabeth Menefee, in an easterly direction on what is commonly known as to the Canyon road leading into the city of Portland. This is a modern four-lane highway-two of the lanes being used for eastbound traffic and the other two lanes for traffic moving in the opposite direction. There is a gravel strip aboout3 1/2 feet wide marking the center of the highway. Potter was traveling down hill at a high rate of speed and, as he rounded a turn, the automobile struck and demolished a part of the guard fence on the south side of the highway. It thereupon swerved diagonally across the dry concrete pavement for a distance of 125 feet, stopping near the center of the highway-all of which occurred within the boundaries of the city, but not within any residential or business section. The highway west of the place of accident was straight for a distance of 500 or 600 feet.

Although the automobile was quite badly damaged, Potter succeeded in driving it forward about 25 or 30 feet when, as he says, "the rear end of the car went out and locked." He was obligated to leave it, facing in an easterly direction substantially parallel with the highway-the left wheels resting on the edge of the gravel strip between the double lanes of traffic.

Within a few minutes after this accident occurred, the plaintiff, a young man 24 years of age, came along on his motorcycle en route to the city and found Potter with the disabled car. Plaintiff conveyed Potter on his motorcycle to the city for the purpose of securing a tow car. After Potter had telephoned to the Arrow Towing Service, plaintiff brought him back to where the wrecked Menefee car had been left on the highway.

In the meantime apparently some one had telephoned the city police station concerning the wreck, as two police officers were at the scene when the plaintiff and Potter arrived. Potter stayed with the car while the plaintiff, in response to Potter's request, proceeded on in a westerly direction in search of Mrs. Menefee's husband to secure from him his "A. A. A." card and bring it back to Potter.

While the plaintiff was away the tow car arrived. It passed the wrecked car, then backed up to its rear end preparatory to picking it up. The lights of the tow car-which was facing up hill in a westerly direction-were dimmed. It also had a red light on its left side and a green one on the right and there was a lighted sign "Arrow Towing Service" on the front of the car. However, the defendant towing company placed no light or sign on the highway to warn on-coming traffic going in an easterly direction that there was a wreck ahead and that the highway was partially blocked. Soon after the tow car arrived, the police officers arrested Potter on a charge of reckless driving and took him in the prowler car to the police station.

About 30 minutes after the two car arrived, while it and the wrecked car were in the positions on the highway as above stated, the plaintiff, after searching fifteen or twenty minutes for Menefee, started home. As he came down hill and approached the scene of the accident, the sole operator of the tow car signaled with a small flash-light for plaintiff to reduce speed. Plaintiff evidently saw the flash-light signal as he slowed down. After he passed the tow car and was alongside the wrecked car, he was overtaken and struck by an automobile driven by the defendant Alfred Pietila. Pietila was driving about 43 miles an hour and failed to reduce his speed before striking the plaintiff. The Pietila car struck plaintiff after first hitting the tow car and "sideswiping" the Menefee car. As a result of this collision, plaintiff was thrown to the pavement and injured. He was taken to the hospital in an unconscious condition and testifies that he remembers nothing about how the accident occurred.

The theory of the plaintiff is that the negligence of the defendants concurred in producing the injuries of which he complains, and that, therefore, they are jointly and severally liable, although no common design or concerted action existed: Fieger v. Imperial Skating Rink, 148 Or. 137, 35 P.2d 683; Murray v. Helfrich, 146 Or. 602, 30 P.2d 1053; Stamos v. Portland Electric Power Company, 128 Or. 310, 274 P. 915. No prima facie case was made against the defendant Mary Elizabeth Menefee, but the jury found in her favor. Hence no further comment will be made with reference to the case against her.

The defendant appellant urges in substance that the motions for a nonsuit and directed verdict should have been allowed for the reasons: (1) That plaintiff was guilty of contributory negligence as a matter of law in that, (a) any person of ordinary prudence would, under the circumstances, have known of the existing conditions at a point 500 or 600 feet before reaching the scene of the accident and had ample room to pass in safety; (b) it was the duty of the plaintiff under the statute to drive on the extreme right lane of traffic, whereas he drove on the extreme left side of the highway. (2) That there is no evidence tending to show that the alleged negligence of the defendant towing company is the proximate cause of plaintiff's injuries.

We think the question of whether plaintiff was guilty of contributory negligence presented an issue of fact. After an accident has occurred it is comparatively easy in the quietude of the office to demonstrate how it could have been avoided. However, we must measure the conduct of plaintiff by the degree of care which an ordinarily prudent person would have...