Herndobler v. Rippen
| Decision Date | 16 February 1915 |
| Citation | 75 Or. 22,146 P. 140 |
| Parties | HERNDOBLER v. RIPPEN ET AL. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.
Action by Albert H. Herndobler, a minor, by A. B. Herndobler, his guardian ad litem, against Phillip Rippen, Cecelia Rippen and another. From an order setting aside a judgment for plaintiff against the defendants named and dismissing the action as to such defendants, and from the judgment for such defendants, plaintiff appeals. Affirmed.
Omitting the formal allegations, plaintiff's complaint is as follows:
"That the defendants, on the 16th day of September, 1912, invited and requested said Albert H. Herndobler to accompany them on a visit and hunting trip to the ranch of the defendants in the county of Klickitat, state of Washington, the said ranch being about 20 miles from a town in the state of Washington by the name of Lyle; that, while at said ranch the defendants were the owners and in possession of a 32 special rifle, which they were using for hunting in and about the said ranch, and that on September 9, 1912, while the plaintiff, Albert H. Herndobler, was exercising due care, and was in the ranch house of the defendants at defendants' invitation and request, the defendants Phillip Rippen, Cecelia Rippen, and Cecil Rippen, a minor, carelessly and negligently proceeded to unload the said 32 special rifle and to clean and oil same in a careless and negligent manner, in that the said gun was negligently and carelessly pointed toward this plaintiff, and while so carelessly and negligently pointed toward this plaintiff, and while the defendant Cecil Rippen at the request of, and in the presence and with the consent of, Phillip Ridden and Cecelia Rippen, was unloading said gun and manipulating the same, and while said Phillip Rippen and Cecelia Rippen were aiding said Cecil Rippen in the cleaning and ascertaining the operation of said 32 special rifle, the same was carelessly and negligently discharged by said defendant Cecil Rippen, in the presence of said defendants Phillip Rippen and Cecelia Rippen, while acting under their direction, by reason whereof this plaintiff herein, who was within said ranch house, was injured by being shot in the right leg, making it necessary to amputate the said leg at a distance of approximately six inches from the hip, thereby permanently crippling this plaintiff, and damaging him in the amount of $25,000."
To this complaint defendants filed an answer admitting the injury to plaintiff, and denying all other material allegations therein, and, by way of affirmative defense, allege, in substance, that plaintiff was, at the time of the accident, a guest at the ranch of defendant Phillip Rippen; that defendant Cecil Rippen is the minor son of Phillip Rippen and Cecelia Rippen, who are husband and wife; that defendant Cecil was the owner of a 32 special rifle, and was carefully and cautiously removing the shells therefrom, when plaintiff negligently contributed to his injury by altering his position and placing himself in front of the muzzle of the gun at the moment when the gun was discharged, and thereby received the injury of which he complains. Plaintiff's reply is a general denial.
There is practically no conflict as to the facts proven upon the trial, which, so far as they are pertinent to this discussion are as follows: The plaintiff, at the time of his injury, was a boy about 16 years of age, and was a guest at the homestead of defendant Phillip Rippen who, with his wife and minor son Cecil Rippen, and two other guests, were enjoying a hunting trip, and were occupying a small two-room cabin. At the time of the accident the entire party of six persons were together in a room 10X12 feet, containing a table, stove, bed, and possibly other furniture, when the two boys decided to unload their rifles in order to count their cartridges, which they proceeded to do. Phillip Rippen at the time was engaged in treating his sore foot, and asked plaintiff to hand him some lard from a small table near the stove. Plaintiff did so, and immediately returned to the task of unloading his rifle. He picked up the gun, and as he tried to remove a cartridge which was jammed Mrs. Rippen spoke to her son, Cecil, cautioning him to be careful with his gun, and at that instant...
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Hillman v. Northern Wasco County People's Utility Dist.
...trial. The allowance of the motion for judgment n. o. v. results in a final judgment without a new trial. This court, in Herndobler v. Rippen, 75 Or. 22, 146 P. 140, 141, held that 'a trial court exceeds its powers when, upon motion for a new trial, it sets aside a verdict, * * * and enters......
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Fuller v. Studer, 19281
...Parsons v. Smithey, 109 Ariz. 49, 504 P.2d 1272 (1973); Ellis v. D'Angelo, 116 Cal.App.2d 310, 253 P.2d 675 (1953); Herndobler v. Rippen, 75 Or. 22, 146 P. 140 (1915). In Gorden, this Court rejected an argument that would have imposed liability upon parents for a child's negligence based up......
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McDowell v. Hurner
... ... special rifle in the hands of his minor son, resulting in ... injury to a third person. Herndobler v. Rippen, 75 ... Or. 22, 146 P. 140. This case was not tried [142 Or. 632] on ... the theory that the automobile is inherently a ... ...
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German v. Kienow's Food Stores
...84 Or. 15, 31, 163 P. 831, 164 P. 189 (1917), where the opinion on rehearing entered a belated nonsuit in this court; Herndobler v. Rippen, 75 Or. 22, 146 P. 140 (1915), where it was error to grant a judgment n.o.v. when only a new trial had been requested, but final judgment was nontheless......