Haltom v. Fellows

• Decision Date: 09 November 1937
• Citation: Haltom v. Fellows, 157 Or. 514, 73 P.2d 680 (Or. 1937)
• Parties: HALTOM v. FELLOWS et al.
• Court: Oregon Supreme Court

73 P.2d 680

157 Or. 514

HALTOM v. FELLOWS et al.

Supreme Court of Oregon

November 9, 1937

Department 1.

Appeal from Circuit Court, Multnomah County; James P. Stapleton Judge.

Action by E. T. Haltom against W. C. Fellows, the Howard-Cooper Corporation, and V. G. Caldbeck.From a judgment in favor of plaintiff against all three of the defendants, defendantsCaldbeck and Howard-Cooper Corporation jointly appeal, and defendant Fellows separately appeals.

Reversed and remanded, with directions.

Action by plaintiff, E. T. Haltom, against defendants, W. C Fellows, Howard-Cooper Corporation, and V. G. Caldbeck, to recover damages because of personal injuries sustained when the automobile in which plaintiff was riding as a passenger left the pavement, fell about 15 feet in the course of which it turned completely over and came to rest right side up.DefendantV. G. Caldbeck was an employee of defendantHoward-Cooper Corporation, the owner of said automobile; and at the time of the accident, was driving said car westerly.The accident occurred February 8, 1936, on the upper Columbia River highway approximately 10 miles west of Arlington.At said time and place defendantW. C. Fellows was driving his automobile easterly.The two cars met and passed each other without colliding.From a judgment in favor of plaintiff against all three of the defendants, defendantsCaldbeck and Howard-Cooper Corporation jointly prosecute an appeal, and defendantW. C. Fellows, prosecutes an appeal separately from that of his codefendants.

Donald K. Grant, of Portland (Maguire, Shields &amp Morrison, of Portland, on the brief), for appellantW. C Fellows.

Robert T. Mautz, of Portland (Wilbur, Beckett Howell & Oppenheimer and Calvin N. Souther, all of Portland, on the brief), for appellantsHoward-Cooper Corporation and V. G. Caldbeck.

Paul R. Harris, of Portland (Davis & Harris and Gus.C. Moser, all of Portland, on the brief), for respondent.

Plaintiff alleges in his complaint that the automobile, in which he was riding, was caused to go over an embankment on the right side of the road in order to avoid a head-on collision with the automobile owned by defendant Fellows.

Plaintiff charges all defendants with gross negligence in driving at an excessive speed, in driving on the left-hand side of said highway, in failing to have said automobile under proper control, and in failing to keep a proper lookout.

Plaintiff charges defendant Fellows with additional gross carelessness and negligence in being in the act of lighting a cigarette while traveling around a curve, thus taking his eyes off the road and not having his car under proper control.

DefendantsCaldbeck and Howard-Cooper Corporation, after denying plaintiff's charges of negligence on their part, interpose two affirmative defenses; the first being to the effect that while plaintiff was riding as a guest passenger in the automobile of these defendants, their said automobile was caused to leave the highway through no fault on their part, but solely because of the negligence of defendantW. C. Fellows in driving at an excessive rate of speed; in driving around a curve in the highway on the left-hand or wrong side thereof; in failing to drive as close as practicable to the right-hand edge of said highway; in failing to keep a proper lookout; in failing to have his automobile under proper control; and in attempting to light a cigarette while operating his automobile around a curve in a public highway.

As a second affirmative defense, said defendants allege that, if the evidence should establish any gross negligence upon their part, then the plaintiff was guilty of contributory negligence in that he knew of the same, or in the exercise of due care should have known of the same in time to avert said accident by promptly remonstrating with or warning the driver of said vehicle, all of which he failed to do.

The answer of defendant Fellows consists of an admission that on or about the 8th day of February, 1936, an automobile owned by defendantHoward-Cooper Corporation and occupied by plaintiff was involved in an accident near the city of The Dalles, Or., and a denial of every other allegation contained in plaintiff's complaint.

In brief, the evidence discloses that at Pendleton, plaintiff made arrangements with defendant Caldbeck to ride as a guest with Caldbeck in the automobile driven by Caldbeck, intending to go from Pendleton to Portland.They left Pendleton at about 9:30 or 10 o'clock in the morning, stopped for lunch at Hermiston at about 11 a. m.The plaintiff testified that the accident happened at about midday.Defendants Caldbeck and Fellows fix the time at approximately 1:45 p. m. At the place of the accident there is a curve in the highway.At that place, both from the east and the west, there is an ascending grade the apex of which is some distance easterly from the halfway point on said curve.Approaching the place of the accident from the west, the grade, which, as stated, is an ascending one, is approximately a 4 per cent. grade, while from the east to the brow of the hill there is a grade approximately one-half of one per cent.The weather had been cold, and there were spots of ice on the pavement both to the east and to the west of the scene of the accident.On the southerly side of the road, a hill or bluff comes down to the road at the center or midway point of the curve.The two cars were not visible to each other until they were approximately 125 or 150 feet apart.Defendant Fellows' car had skidded, and when the two cars came into view of each other, the rear wheels of Fellows' car were on his left side of the center of the highway a distance estimated variously from 20 inches to 3 feet.Fellows managed to right his car and bring it back on his right of the center of the highway while the two cars were from 75 to 80 feet apart.Upon seeing the Fellows car, defendant Caldbeck turned his automobile to his right, and was unable thereafter to secure sufficient traction to enable him to remain on the pavement and negotiate the curve.After meeting and passing the Fellows car, the Caldbeck car went off the bank, turned completely over, and came to a stop right side up with plaintiff and defendant Caldbeck seated therein practically as they were before the accident.There is testimony to the effect that when the two cars came into view of each other, the Caldbeck car was over on its left side of the center of the highway estimated by plaintiff at from 18 to 20 inches, and by defendant Fellows at somewhat more than that.Defendant Caldbeck testified that his left wheels were upon the center of the yellow strip.Mrs. Pickett and Mrs. Fellows, who were occupants of the Fellows car, testified that Caldbeck was cutting the corner.The testimony is likewise conflicting with regard to the speed at which the two cars were driven.Plaintiff says that the Caldbeck car was traveling at the rate of 50 to 60 miles per hour, and that the Fellows car was traveling even faster.Other witnesses fix the speed at 30 to 40 miles per hour as the cars approached each other, and less than that when they met and passed each other.

Shortly after the accident, a passing automobile stopped and defendants Caldbeck and Fellows carried plaintiff from the Caldbeck car to the car of the passerby, and Caldbeck and plaintiff were then taken to The Dalles.Plaintiff was taken to a hospital at The Dalles where he remained until 6:30 or 7:30 that evening, whereupon he walked with Caldbeck to the railway depot and took the train to Portland.Caldbeck furnished a small sum of approximately 20 cents to enable plaintiff to purchase his ticket from The Dalles to Portland.At Portland, Caldbeck paid the taxicab fare to take plaintiff to his home from the Portland passenger depot.Caldbeck defrayed the hospital expenses, including that of an attending physician at The Dalles.

In the brief of defendantsCaldbeck and Howard-Cooper Corporation, thirteen assignments of error are presented.

Six of the assignments of error in behalf of defendant Fellows are the same or similar to the like number presented by his codefendants.

In addition to these six assignments of error, common to both sets of appealing defendants, defendant Fellows presents two more.

The first assignment of defendantsCaldbeck and Howard-Cooper Corporation is based upon the refusal of the court to grant said defendants' motion for an order of involuntary nonsuit.

In support of this assignment, it is argued that there is no evidence of gross negligence on the part of defendant Caldbeck.We think that in approaching and entering a curve upon an ascending grade flanked on one side by a bluff and on the other by a 15-foot declivity, a driver who operates his car at a speed of 50 to 60 miles an hour, where the view is obstructed so that he has a range of only 125 or 150 feet within which to see whether another automobile is approaching or the highway is otherwise obstructed, and where portions of the pavement are icy and smooth, is driving in a manner which can properly be deemed grossly negligent.Layman v. Heard,156 Or. 94, 66 P.2d 492.

The second assignment of the two defendants jointly appealing urges that error was committed in refusing to permit defendant Caldbeck to testify that shortly after the accident the plaintiff stated to him: "What happened to the car that crowded us off the road?"

We think that these defendants were entitled to introduce in evidence the foregoing alleged statement of plaintiff against his interest.Upon the record of this case, however, we think that error thus committed by sustaining their codefendant's objection thereto does not in itself alone constitute grounds for reversal.

The manner in which the accident...