Francisco v. Circle Tours Sightseeing Co.

• Decision Date: 03 April 1928
• Parties: FRANCISCO v. CIRCLE TOURS SIGHTSEEING CO.
• Court: Oregon Supreme Court

265 P. 801

125 Or. 80

FRANCISCO v. CIRCLE TOURS SIGHTSEEING CO.

Supreme Court of Oregon

April 3, 1928

Department 2.

Appeal from Circuit Court, Multnomah County; T. E. J. Duffy, Judge.

Action by Emma B. Francisco against the Circle Tours Sight-Seeing Company, Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action for damages for personal injuries. Upon a trial to the court and a jury, verdict and judgment went to plaintiff. Defendant appeals.

On September 1, 1925, the defendant corporation was engaged in transporting passengers for hire in automobile busses on sight-seeing trips on the Columbia River highway. Plaintiff procured a ticket and paid her fare and was a passenger on one of these busses, and was being transported along the Columbia River highway from Portland to Hood river. Plaintiff was sitting on the right of the back seat with two other ladies when the bus, a few miles west of the Columbia Gorge Hotel, near Hood river, was negligently driven off the highway into the ditch, or drain, and violently thrown against the bank, which was about 15 feet high. The impact threw the plaintiff to the side of the car. The car was tipped to the right and the two women, who were quite large fell on the plaintiff. She states, "I was twisted." The testimony tended to show that the plaintiff was seriously injured.

Homer D. Angell, of Portland (Angell, Fisher & Sabin, of Portland on the brief), for appellant.

Paul R Harris, of Portland (Davis & Harris and Henry Hartje, all of Portland, on the brief), for respondent.

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

The main question raised upon this appeal is that the trial court instructed the jury on the res ipsa loquitur rule. The defendant contended at the trial, and also at argument, that the rule does not apply for the reason that the plaintiff alleged in her complaint specific acts of negligence, and did not rely on general negligence. The plaintiff alleges the negligence in the following language:

"That when said automobile was a few miles west of the 'Columbia Gorge Hotel' in said county, the defendant carelessly, negligently, and recklessly drove said automobile off the said highway and into a ditch which paralleled said highway, thereby causing the said automobile to be violently tipped to its right side, all of which resulted in severe and permanent injuries to the plaintiff, the same being hereinafter more specifically set forth."

The testimony of H. T. Hinsey, introduced by the stipulation of counsel for the parties, is to the effect that he was the driver of the bus at the time of the accident that as he approached the point mentioned there was a stone directly in his line of travel and he attempted to pass to the right to avoid the same and to avoid an approaching machine and the right wheels of the car slipped over a small embankment and ditch; that the auto curved to the right and rested against the bank; that he was driving the car at the rate of about 15 miles per hour and stopped it after it left the highway at a distance of about 3 feet.

Mr. A. E. Hitsman, the owner or manager of the company, to whom the driver telephoned to Portland, after leaving the car at the place of the accident, and proceeding with the passengers to the Columbia Gorge Hotel, proceeded by auto to the place of the accident during the afternoon of the same day. He testified as a witness for the defendant, among other things: That the car was not injured except for the fender. That the rear hind wheels were off the side. That the left hind wheel was not over a foot from the pavement. That the distance between the pavement and the ditch was about 6 feet. The ground was sloping. The car was tilted. The right side 10 or 12 inches lower than the left. The car was about 4 1/2 or 5 feet wide. The entire car was off the pavement. That the front right wheel just kind of nosed into the bank. That it had passed a curve about 50 feet.

By the instruction complained of the court informed the jury, in substance, that when the thing which causes an accident is shown to be under the management and control of the defendant and the accident is such, as in the ordinary course of things does not happen, if those who have such management and control use proper care, the happening of the accident affords a presumption of the defendant's negligence.

The bus was in control of the defendant. The accident was surely one not in the ordinary course of things. It is not customary to run an automobile against a hill or embankment 15 feet high to stop it. The force of the collision of the auto with the hill was evidently what caused the plaintiff to be thrown against the side of the car with her traveling companions.

The rule is tersely stated by former Chief Justice Bean in the case of Goss v. S. P. Ry. Co., 48 Or. 439, 441, 87 P. 149, 1 N.C. C. A. 235, in effect, as follows: Ordinarily, the mere fact of the accident does not per se raise a presumption of negligence, but "often negligence may be implied from the facts and circumstances disclosed, in the absence of evidence showing that the accident occurred without negligence. Shearman & Redfield, Negligence (4th Ed.)§ 59; 2 Thomas, Negligence (2d Ed.) p. 1093; Jaggard, Torts, 938. As an illustration, where the evidence shows that the defendant had the exclusive management and control of the thing which caused the injury, or where it appears that the accident occurred by reason of some defect of the vehicle, machinery, roadbed, or appliance, the circumstances, if not explained, may be sufficient to justify a jury in drawing the inference of negligence, under the rule of res ipsa loquitur.

The rule is stated in Berry, Automobiles (4th Ed.) p. 216, § 216, as follows:

"The doctrine of res ipsa loquitur may be applied in actions seeking to recover for injuries due to the operation of automobiles. The facts surrounding and forming part of an automobile accident may be such as to raise an inference that the accident was due to negligence on the part of the person operating or in control of the automobile."

The basis of the doctrine is stated in 5 R. C. L. 77, § 714, thus:

"The reasons assigned by the courts for this rule are: (1) The contractual relation between the carrier and passenger, by which it is incumbent on the carrier to transport with safety; hence the burden of explaining failure of performance should be on the carrier. (2) The cause of the accident, if not exclusively within the knowledge of the carrier, is usually better known to the carrier, and this

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