Garland v. Wilcox

• Decision Date: 27 January 1960
• Citation: 220 Or. 325,348 P.2d 1091
• Parties: Roger Edward GARLAND, by his Guardian Kenneth Garland, Respondent-Cross Appellant, v. Gordon WILCOX, Respondent-Cross Appellant, Harold Monroe Maddy, Respondent, and Robert Kenneth Garland, Appellant.
• Court: Oregon Supreme Court

Page 1091

348 P.2d 1091

220 Or. 325

Roger Edward GARLAND, by his Guardian Kenneth Garland Respondent-Cross Appellant, v. Gordon WILCOX, Respondent-Cross Appellant Harold Monroe Maddy, Respondent, and Robert Kenneth Garland, Appellant.

Supreme Court of Oregon, Department 1.

Argued Nov. 13, 1959.

Decided Jan. 27, 1960.

Seitz, Easley & Whipple, Portland, for the appellant Robert Kenneth Garland.

John L. Luvaas, Eugene, argued the cause for respondent-cross appellant Robert Edward Garland. On the brief were Luvaas, Cobb & Richards and Dale T. Crabtree, Eugene.

Windsor Calkins, Eugene, argued the cause for respondent-cross appellant Gordon Wilcox. On the brief were Calkins & Calkins, Eugene.

Thwing, Jaqua & O'Reilly, Eugene, for the respondent Harold Monroe Maddy.

Before McALLISTER, C. J., and PERRY, O'CONNELL and REDDING, JJ.

O'CONNELL, Justice.

This is an action by Roger Edward Garland through his guardian Kenneth Garland to recover damages for personal injuries which he received while riding in an automobile driven by defendant Robert Kenneth Garland, plaintiff's brother. The injuries were suffered as a result of an accident in which the automobiles of defendants Robert Garland, Harold Maddy and Gordon Wilcox were involved.

The jury returned a verdict for defendant Maddy and for the plaintiff against the defendants Wilcox and Garland. Defendant moved for a judgment notwithstanding the verdict, which was granted.

Defendant Robert Garland appealed and plaintiff and defendant Wilcox cross appealed. By stipulation the appeal was dismissed as to defendants Maddy and Garland and consequently we are presented only with the issues raised in contest between plaintiff and defendant Wilcox.

The accident occurred on U. S. highway 99 at approximately 9:00 a. m. near Walker, Oregon. The highway was wet. Defendant Maddy was proceeding northerly at a speed of approximately 30 to 35 miles per hour. Defendant Wilcox was proceeding at about the same speed in the same direction, following Maddy's car at a distance of approximately three or four car lengths just before the collision. The Garland car, in which plaintiff was riding, was proceeding southerly. When it was first seen by defendants Maddy and Wilcox it was rounding a curve at a high rate of speed. Maddy described the scene as follows:

'A. Yes. I was a-comin' from the south and comin' around 30-35 miles an hour and I got, oh, 100 feet of this curve and I seen this car start to turn out around the curve to make the curve on his own side. In place of that, he skidded a little, then he got straightened up, then he just come right around in front of me and blocked me. Right square in front of me. I'd moved up a little. I thought I would get him--he wanted to go over the bank but he changed his mind and come right into me.

* * *

* * *

'The Garland car skidded, then he kind of straightened up, and then he come right on across to my side of the road, then he seen where he was at and then he just whirled it like this and started back across and my car hit him right about the back seat.

* * *

* * *

'Q. Did you have a chance to gauge his speed as he was approaching? A. Well, he was going at least 60-65 miles an hour.'

Wilcox also saw the Garland car as it proceeded around the curve. He observed that it was going at a high rate of speed and was swerving and skidding so that the rear end of the car was over the center line of the highway. He continued on his course without slackening his speed until the Garland and Maddy cars collided, whereupon he applied his brakes and attempted to turn off the highway when his car was struck by the Garland car. This in general was the manner in which the accident occurred.

Since the trial court entered a judgment notwithstanding the verdict we must examine the evidence in the light most favorable to the plaintiff. Clark v. Strain, 1958, 212 Or. 357, 319 P.2d 940; United Finance Co. v. Kliks, 1957, 210 Or. 288, 310 P.2d 1103; Shelton v. Lowell, 1952, 196 Or. 430, 249 P.2d 958; Jensen v. Salem Sand & Gravel Co., 1951, 192 Or. 51, 233 P.2d 237; Edvalson v. Swick, 1951, 190 Or. 473, 227 P.2d 183. The evidence viewed in that light would establish that defendant Wilcox saw the Garland car traveling at a high rate of speed as it rounded a curve; he saw the car swerve into the northbound lane of traffic in which he was proceeding; he observed that the car continued in the northbound lane of travel, sliding broadside toward the oncoming Maddy car. The highway was wet. The jury was entitled to believe that the danger created by these circumstances was first known to defendant Wilcox when he was 600 feet away; that he continued toward the scene of danger at a rate of 35 miles per hour, and that he did not apply his brakes until after the impact between the Maddy and Garland cars. More specifically, the evidence was as follows.

Wilcox testified that 'At the time I first saw the Garland car it was beginning to broadslide [sic]. * * * The rear end had maybe came--come a foot over the center of the road.' From the time that he first saw the Garland car until the impact with the Maddy car the Garland car continued its sliding motion. The following testimony of Wilcox establishes this latter fact.

'Q. Well, then, tell us what the car did between the time you first saw it and the first impact. A. It continued on into the broadslide [sic] into--it was just broad--broadway across the road at which time it was involved in an impact with Mr. Maddy's car.'

In spite of the fact that Wilcox saw the Garland car continue to slide sideways into the northbound lane of traffic he did not apply his brakes from the time he saw the Garland car until it collided with the Maddy car. When that collision occurred Wilcox then applied his brakes and attempted to turn to the right. He testified as follows:

'Q. Did you ever apply your brakes prior to the accident? A. Yes.

'Q. Before you hit, I mean? A. Yes, sir.

'Q. When? A. As I started to pull to the right.'

Wilcox had testified previously that he had started to pull to the right only after the Maddy and Garland cars had collided. Thus the jury could have concluded that in spite of the fact that from the time Wilcox saw the Garland car 600 feet away and had the opportunity to slow down and turn to the right in order to avoid a possible collision with either of the two cars ahead of him, he elected to proceed into an area of danger involving a risk of harm to the occupants of both of these other cars. Certainly the jury was entitled to regard this as unreasonable conduct under the circumstances.

In numerous adjudicated cases where the facts are more favorable to the defendant than they are in this case, it has been held that the jury is entitled to determine whether the defendant exercised due care under the circumstances. See Annotation: Negligence of Motorist Colliding with Vehicle Approaching in Wrong Lane, 47 A.L.R.2d 7 (1956). The rule may be illustrated by reference to Robichaud v. St. Cyr, 1954, 150 Me. 168, 107 A.2d 540. There the evidence showed that defendant was following a state police car along a wet and slippery highway. Defendant was approximately 100 yards behind the police car. A car coming from the opposite direction rounded a curve and began to skid from side to side on the slippery road. The police car turned off to the side of the road, but defendant continued at his previous speed of approximately 30 miles an hour. The oncoming car crossed the center line and crashed into defendant's car, injuring the plaintiff who was his guest. The court held that these facts presented a jury question as to defendant's negligence. Some of the specific questions which the jury were entitled to consider were set out by the court as follows:

'* * * Was the defendant driver in the exercise of due care under the circumstances? Did the defendant see the skidding car, if it was skidding? Was the road slippery? Was the speed of the defendant's car excessive at the time and under the conditions? Should the defendant have reduced his speed? Should the defendant have stopped, and pulled off the highway as did the police car ahead? Should the defendant have attempted to avoid the oncoming car? Was the oncoming car apparent to the defendant as out of control? If out of control, what should defendant have done that he failed to do, or what should he have ceased to do, whatever he may have been doing? These and many other questions were questions that presented issues for jury consideration.' 107 A.2d at page 542.

In Gamble v. Lewis, 1949, 227 Ind. 455, 85 N.E.2d 629, the defendant, while traveling westerly in the proper lane, approached plaintiff's car coming from the opposite direction. Plaintiff's car had swerved into defendant's lane of travel and, in attempting to avoid a collision, both drivers simultaneously turned to the south, whereupon the cars met and the injury occurred. In describing defendant's duty, the court said:

'The appellant driver, when she was suddenly faced with the emergency created by the appellee driving on the north side of the road, could have driven off the traveled portion of the highway on the north berm; she could have driven straight ahead in the hope that the appellee would turn to the south in time to have avoided the collision; she could have driven on the south half, as she did; she could have driven completely on the berm on the south side far enough to have missed the appellee when he turned south; and she could have applied her brakes at once in an effort to slow down while pursuing any one of these courses. We cannot say that reasonable men could not differ on which was the reasonable course of conduct for her to follow under all the circumstances of the emergency. Therefore, under the authorities above cited on negligence and proximate cause being a question of fact or law, the question of appellant driver's negligence was one for the jury under proper...