Goebel v. Vaught

• Decision Date: 31 July 1928
• Citation: 269 P. 491,126 Or. 332
• Parties: GOEBEL v. VAUGHT.
• Court: Oregon Supreme Court

269 P. 491

126 Or. 332

GOEBEL v. VAUGHT.

Supreme Court of Oregon

July 31, 1928

Department 1.

Appeal from Circuit Court, Wallowa County; J. W. Knowles, Judge.

Action by Margaret Goebel against H. M. Vaught. Judgment for defendant, and plaintiff appeals. Affirmed.

Plaintiff sued defendant for damages on account of personal injuries received in an automobile accident. Plaintiff was riding as the guest of defendant, when a collision occurred between his car and a car driven by Willie George. Defendant was returning from Enterprise to Wallowa. Willie George was driving from Wallowa towards Enterprise. The two cars collided on a curve a few miles north of Enterprise. As a result of the collision, the car of defendant was damaged and its course changed so that it ran across the highway and into Wallowa river, seriously injuring plaintiff and defendant's wife, who was riding with her in the rear seat. Plaintiff charges defendant with negligence in the following particulars: First, driving at an excessive rate of speed during the nighttime; second, failing to keep a proper observance of the whereabouts of approaching cars; third improper use of a spotlight not properly adjusted as provided by law; fourth, failing to keep his car under control steering it into and against an approaching automobile, and deflecting defendant's car from its course into Wallowa river, a distance of about 55 feet, failing and neglecting to use the brakes on said car and stopping before it ran from the highway into the river; fifth, failure to keep his car under control while so driving in the nighttime along the road and in the face of cars approaching from the opposite direction. Defendant filed an answer, denying all charges of negligence, and setting up an affirmative defense to the effect that the collision was caused by the negligence and unlawful acts of said George. Plaintiff demurred to the affirmative defense. The demurrer was overruled, whereupon plaintiff joined issue by filing a reply denying defendant's affirmative answer. The verdict was for defendant, and plaintiff appeals, assigning 23 errors. They are based on the court's ruling on plaintiff's demurrer to defendant's answer, the admission of testimony in answer to an interrogatory propounded to defendant while a witness in his own behalf, the giving of certain instructions, and the refusal to give certain requested instructions.

Daniel Boyd, of Palo Alto, Cal., for appellant.

Colon R. Eberhard, of La Grande (Cochran & Eberhard of La Grande, and James L. Conley, of Portland, on the brief), for respondent.

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

The ruling of the court on the demurrer to defendant's further and separate answer is not questioned in the argument or brief, so that assignment of error will receive no further consideration.

The question propounded to defendant and objected to by plaintiff is as follows: "Now, as to the collision, you may state whether at that time you were expecting any collision." The question was objected to because it called for a conclusion of the witness. It was answered, however, before the objection was made. The plaintiff moved to strike out the answer, and that motion was allowed. During the progress of the trial the question was reasked, and the court ruled against plaintiff, permitting the question to be answered. The objection was that the question was immaterial. The trial judge held that it called for the condition of defendant's mind, and that he was entitled to answer the question to show that he was not expecting a collision. The information called for by the question was to explain defendant's conduct in not applying the brakes sooner, stopping his car, and for other conduct on his part at the time of the collision. If he had been expecting a collision from the appearance of the oncoming automobile, he would have had time to meet the conditions, and could have conducted himself with better judgment probably. Plaintiff made much during the trial, and did in his argument here, because defendant did not stop his car within the 55 feet between the place of the collision and the river. The purpose of inquiring into the state of defendant's mind was to show that he had no time to reflect--that he was surprised. We think the objection as made was not well taken, and that the ruling must be sustained. There is respectable authority permitting the direct testimony of a witness as to the state of his mind, particularly expressing his intent and motive. 1 Wigmore on Evidence, § 581; Thompson v. Collins, 139 Wash. 401, 247 P. 458.

Where a person is placed suddenly in a position of imminent peril, without sufficient time to consider all the circumstances, the law does not require of him the same degree of care and caution as it requires of a person who has ample opportunity for the full exercise of his judgment and reason. 42 C.J. § 592; Wiley v. Cole, 67 Cal.App. 762, 228 P. 550, 552, 553; Berry, Automobiles (4th Ed.) § 217; Noble v. Sears, 122 Or. 162, 257 P. 809; Hansen v. Bedell Co. (Or.) 268 P. 1020, decided July 11, 1928. One reason for propounding the question objected to as stated above was to bring out to the jury that the collision caused an emergency; that appearances did not indicate to the mind of the driver that a collision was likely. Defendant testified that, when his car was struck and hurled at right angles from the course it was proceeding, he endeavored three times to turn it back into the road and its former course so as to avoid going into the river; that the damage to the automobile was such as to lock the steering apparatus; that he did not discover this in time to prevent his automobile from going over the bank into the river. Whether or not he acted as a reasonably prudent man would have acted under the circumstances was a question to be determined by the jury.

Plaintiff complains of the instruction containing this phrase:

"I further instruct you that it is the law that a driver of a vehicle shall drive the same upon the right half of the highway, and shall not drive to the left side of the center line of the highway in overtaking and passing another vehicle proceeding in the same direction, unless such left side is clearly visible and is free of on-coming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety. * * *"

Plaintiff argues that there was no evidence upon which to base this instruction. Defendant pleaded that the collision occurred as a result of Willie George undertaking to pass other cars going in the same direction, and thereby drove over to his left too far. A witness in behalf of defendant, following defendant's car, testified that he saw the lights of Willie George's car on the left half of the highway just before the collision. There was evidence, therefore, upon which to base that instruction.

Plaintiff also complains because the court instructed the jury that the defendant was not bound to watch or look out for other cars leaving their proper side of the road and going on the wrong side of the road. That instruction clearly states...