Johnson v. Underwood

• Decision Date: 24 January 1922
• Citation: 102 Or. 680,203 P. 879
• Parties: JOHNSON v. UNDERWOOD ET AL.
• Court: Oregon Supreme Court

203 P. 879

102 Or. 680

JOHNSON v. UNDERWOOD ET AL.

Supreme Court of Oregon

January 24, 1922

Appeal from Circuit Court, Multnomah County; George G. Bingham Judge.

Action by Josephine Johnson as administratrix of the estate of Gustav Johnson, deceased, against Myshale Underwood, and others. Judgment for the plaintiff against all of the defendants, and the named defendant appeals. Affirmed.

This is an appeal from a judgment for damages resulting from the death of one Gustav Johnson. On November 21, 1919, two motor cars collided at the intersection of Powell Valley road with East Eighty-Second street, Portland, Multnomah County, Or with the result that Johnson was hurled from the car in which he was riding and instantly killed. Thereafter Josephine Johnson, his widow, was duly appointed administratrix of his estate, and duly qualified as such. An action at law for damages followed. John Ferguson, one of the defendants, was a real estate broker with offices in the Gerlinger Building Second and Alder streets, Portland, Or. Plaintiff averred that C.J. Anderson, another defendant, was an employee of Ferguson, and that at Ferguson's request he undertook to convey Gustav Johnson, the deceased, and his wife, Josephine Johnson, in a Ford car, alleged to belong to Ferguson, to a 20-acre tract of land situate some miles distant from the city of Portland, which Ferguson and Anderson were offering for sale to the deceased. Anderson drove the prospective purchasers from the brokers' place of business to Division street, thence followed Division street to Eighty-Second street thence along Eighty-Second street until he arrived at its intersection with Powell Valley road. On that date, Myshale Underwood was the owner of a Velie automobile which he was driving in an easterly direction along Powell Valley road. When he reached the intersection of Powell Valley road with East Eighty-Second street within the corporate limits of Portland, Or., the Ford car driven by Anderson collided with his automobile, with the result stated above. The complaint charges, among other things, that both automobiles were being driven "at a high and dangerous rate of speed"; that each driver violated the traffic ordinances of the city of Portland by driving beyond the speed limit provided therein; that neither driver had his machine under control as he approached the intersection of Powell Valley road with Eighty-Second street, and that by reason thereof and of the carelessness and negligence aforesaid, the automobiles collided, and Gustav Johnson was violently thrown from the Ford automobile and instantly killed. Defendant Ferguson filed a general denial. Defendant Anderson admitted that he was in the real estate business and that while he was taking deceased out to look at a piece of property a collision occurred, in which Johnson was killed. For a separate answer and defense he alleged:

"That this defendant operated said automobile over, upon, and along the westerly side of Eighty-Second street where said street intersects with Powell Valley road in Portland, Multnomah county, Or., and at the time of approaching said intersection, this defendant was operating said car at a speed of less than 20 miles per hour, and was using due care in operating said automobile, and had said car at all times under his control, * * * and after he had passed the center of said intersection and in a place where he had a right to be, and while in the exercise of due care an automobile traveling in an easterly direction over and across said intersection and along the Powell Valley road, and without fault of this defendant, struck the rear end of the defendant's car, and that by reason of said contact Gustav Johnson, now deceased, was thrown from the automobile in which he was riding, which resulted in his death."

Myshale Underwood filed an answer in which he admitted:

"(1) The death of Gustav Johnson; (2) the automobile collision (3) the appointment of Josephine Johnson as the administratrix of the estate of Gustav Johnson, deceased; and (4) the existence, force, and effect of Ordinance 35875 of the city of Portland, Or., but not the correctness of plaintiff's digest thereof, and denies each and every other allegation contained therein, except as hereinafter specifically admitted."

For a further and separate defense, Underwood averred, in part, that:

"On November 21, 1919, he was driving his Velie automobile in an easterly direction on Powell Valley road in the city of Portland, Oregon, * * * proceeding at a * * * rate of speed approximately 15 miles an hour.

"That as he approached the intersection of Powell Valley road with Eighty-Second street he kept to the right; * * * that he was operating his machine at said time and place at approximately 15 miles an hour; that he exercised due care and caution in approaching said intersection of said streets; that he had his said automobile under control; * * * that while exercising due care and caution in operating his car, it collided with a Ford machine; that the said Ford machine was being operated at a high, unreasonable, and dangerous rate of speed, * * * contrary to Section 15 of Ordinance No. 35875. * * *

"That immediately upon seeing said Ford machine, this defendant put in the clutch and applied the brake of his automobile, doing his utmost to avoid the impending collision; * * * that the said collision was due to the negligence of the operator of the Ford machine."

For a second further and separate answer and defense, he alleged:

"That at the time of said * * * collision and for * * * three-quarters of an hour prior thereto, Gustav Johnson was a passenger in said Ford automobile; that * * * Johnson * * * understood, * * * or should have understood and appreciated, that the driver of said Ford car was operating same at an excessive and dangerous rate of speed, and failed to have said Ford under control at street intersections; * * * that although said Gustav Johnson knew, understood, and appreciated * * * all of the conditions under which said Ford machine was being operated, and the acts of negligence of the operator of said Ford machine hereinbefore alleged, said Gustav Johnson made no remonstrance with the driver * * * as to the careless, reckless, negligent, and imprudent manner in which said Ford was being operated. * * *"

The action came on for trial, resulting in a verdict in favor of the plaintiff and against defendants John Ferguson, C.J. Anderson, and Myshale Underwood, in the sum of $5,000. From judgment entered pursuant to the verdict, the defendant Myshale Underwood alone appeals, assigning error as follows:

In denying the motion of defendant Myshale Underwood for a nonsuit at the conclusion of the testimony for the plaintiff.

In refusing defendant Underwood's motion for a directed verdict.

In refusing the request of the defendant Underwood that the jury be instructed that plaintiff cannot recover against defendant.

In refusing to instruct the jury that vehicles approaching an intersection shall be under control so as to permit the vehicle on the right of the vehicle approaching to first cross the intersecting street as provided by certain ordinances of the city of Portland.

In refusing to instruct the jury concerning the extreme rate of speed permitted in the locality of the accident.

In refusing to instruct the jury at defendant Underwood's request: "Construing these ordinances in the light of the admitted facts, I instruct you that the Velie automobile driven by the defendant Underwood was on the right of the Ford driven by defendant Anderson, and if you believe from the evidence that the two machines reached the intersection of Eighty-Second street and Powell Valley at the same time, defendant Underwood would be entitled to the right of way and the defendant Anderson would be under the duty to have his automobile under control so as to permit Underwood to take right of way."

Assignments numbered 7 and 8 relate to the exclusion of the proffered testimony of Police Lieutenant Irvin.

Roscoe C. Nelson and Julius Cohn, all of Portland (Julius Cohn and Dey, Hampson & Nelson, all of Portland, on the brief), for appellant.

Bert W. Henry, of Portland (Griffith, Leiter & Allen, of Portland, on the brief), for respondent.

BROWN, J. (after stating the facts as above).

Appellant's assignments numbered 1, 2, and 3, involving a motion for nonsuit, for a directed verdict, and a requested instruction, cover the same ground, thus presenting but one question. Underwood contends that by virtue of the circumstances disclosed by the record the negligence of Anderson, the driver of the Ford, was imputable to the occupants of his car. Also, it is asserted that Anderson's negligence in driving the car was apparent and continuous, and the likelihood of danger obvious.

While Johnson was an occupant of the Ford operated by Anderson, the law imposed upon him, as such occupant, the duty of exercising ordinary care for his own safety. Thompson v. Los Angeles, etc., Ry. Co., 165 Cal. 748, 134 P. 709, 712; White v. Portland Gas & Coke Co., 84 Or. 643, 165 P. 1005.

At the conclusion of the presentation of plaintiff's proofs, the defendant Underwood moved for a nonsuit, as follows:

"Our motion for nonsuit as to this defendant is based upon the fact that it affirmatively appears from the testimony of the plaintiff herself, and from all the testimony introduced on behalf of the plaintiff, that the Ford automobile in which she was riding was being driven and had been driven for some distance and for some time at a grossly reckless, in a grossly reckless manner; that plaintiff and the decedent had failed to protest or to interfere, and by such failure on their part had in law at least acquiesced in the

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