Hansen v. Bedell Co.

• Decision Date: 04 March 1930
• Citation: 132 Or. 332,285 P. 823
• Parties: HANSEN v. BEDELL CO. ET AL.
• Court: Oregon Supreme Court

285 P. 823

132 Or. 332

HANSEN v. BEDELL CO. ET AL.

Supreme Court of Oregon

March 4, 1930

Department 2.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by Bessie Hansen against the Bedell Company and another. Judgment for plaintiff, and named defendant appeals.

Affirmed.

William C. Ralston, of Portland (Burnett Brothers &amp Snyder, Dey, Hampson & Nelson, and Sheppard, Phillips &amp Ralston, all of Portland, on the brief), for appellant.

J. R Latourette, of Portland (Thomas F. Wold and Latourette & Latourette, all of Portland, on the brief), for respondents.

BEAN J.

This is the second appeal in this case. For the former adjudication see 126 Or. 155, 268 P. 1020. Defendant the Bedell Company appeals from an adverse judgment on the verdict of a jury. A verdict was returned in favor of defendant Mary V. Townsend. Therefore we will hereafter designate the Bedell Company as defendant.

The facts of the case are about as follows: On May 8, 1926, at about 5 o'clock p. m., a light delivery truck of the defendant the Bedell Company, operated by G. S. Burns, a regular employee of the Bedell Company, was proceeding south on Seventeenth street in the city of Portland on the right or west side of the street. At the same time the defendant Mary V. Townsend, driving a Ford runabout, in which her mother, Mrs. Eunice E. Townsend, was a passenger, was proceeding east on Hoyt street. The plaintiff, a pedestrian and innocent bystander on the sidewalk at the southeast corner of Seventeenth and Hoyt streets in Portland, was run down by the automobile of defendant Mary V. Townsend, who, in order to avoid a collision at the intersection with the truck of the defendant the Bedell Company, was compelled to swerve from her course, and in so doing ran upon the sidewalk and ran down the plaintiff.

The evidence indicated that both cars approached the intersection at the same time, the Townsend car proceeding easterly and the Bedell truck proceeding southerly; that they were going approximately at the same speed, which was estimated by the witnesses to be from fifteen to twenty miles per hour, although defendant Mary V. Townsend testified that the Bedell Company's truck was going three or four miles per hour faster than her car. The testimony further tended to show that both cars proceeded into the intersection, and that neither car slowed up; that a collision was imminent; that the cars came within three or four feet of each other near the center of the intersection when they both swerved. The Townsend car swerved to the right and the Bedell truck swerved to the left in order to avoid a collision with each other. As the Townsend car undertook to swerve back into its course on Hoyt street, and when within five or six feet of the curb, there was not sufficient clearance, because the Bedell truck had proceeded from the center of the intersection in a southeasterly direction toward the curb, forcing the Townsend car out of its course, in order to avoid a collision at that point with the Bedell truck, and to run up over the curb and onto the sidewalk.

Plaintiff, who was standing on the sidewalk on the southeast corner by a telephone pole, saw the two cars coming into the intersection, saw both swerve to avoid a collision, and saw both head toward her, whereupon she grabbed her child and started to run down the sidewalk in a southerly direction on Seventeenth street, and was run down by the Townsend car about fifteen feet from the corner. At the same time the Bedell truck swerved across Hoyt street, came to a stop near the south curb thereof at about the same distance from the corner to the east as the Townsend car stopped to the south.

The defendant assigns that the trial court erred in overruling the motion of the defendant the Bedell Company for a directed verdict. The motion for a directed verdict was based largely upon the claim that there was a total failure of proof that defendant the Bedell Company failed to yield the right of way to the Townsend car. It is conceded, of course, that the Townsend car had the right of way. With this claim of error we are unable to agree. The only thing necessary for the driver of the Bedell Company truck to do at the time was to slow up or stop so that the Townsend car could proceed across the intersection. This he did not do, but proceeded to within three or four feet of the other car, and crowded it off its course and onto the sidewalk, where it was compelled to go in order to avoid the collision with the Bedell Company truck or a telephone pole standing near.

The jury was warranted in finding that Mary V. Townsend would not reasonably be expected to wait until the other car struck hers. Neither would she be expected to do everything in such an emergency, and when in imminent peril, that she would under ordinary circumstances. There was ample evidence to take the case to the jury. Further, the evidence was practically to the same effect as that upon the...