Kaufman v. Fisher
| Decision Date | 23 May 1962 |
| Citation | 371 P.2d 948,230 Or. 626 |
| Parties | Donald R. KAUFMAN, Appellant, v. Rita FISHER, Administratrix of the Estate of John Howard Fisher, deceased, Respondent. |
| Court | Oregon Supreme Court |
John C. Anicker, Jr., Oregon City, argued the cause for appellant. On the briefs were Jack, Goodwin & Anicker, Oregon City.
Walter J. Cosgrave, Portland, argued the cause for respondent. With him on the brief were Winfrid K. Liepe and Maguire, Shields, Morrison, Bailey & Kester, Portland.
Before McALLISTER, C. J., and WARNER, SLOAN and O'CONNELL, JJ.
This action is brought against the administratrix of the estate of John Fisher, deceased, to recover damages for injuries suffered by plaintiff while riding in an automobile owned and operated by the decedent, whom we shall refer to as Fisher. At the close of plaintiff's case defendant moved for an order of involuntary nonsuit which was allowed and from which plaintiff appeals.
The questions presented upon appeal are, (1) whether there was sufficient evidence to establish that plaintiff was a paying passenger and thus not within the guest statute, ORS 30.110, and (2), assuming that ORS 30.110 is not applicable, was there sufficient evidence of negligence on the part of the defendant to warrant submitting the case to the jury. Plaintiff relies upon the doctrine of res ipsa loquitur to make out a prima facie case. Under ORS 30.080 it was necessary for plaintiff to establish a prima facie case by evidence exclusive of his own testimony. 1
The facts were as follows. On October 27, 1959, Fisher asked plaintiff to join Fisher and several other men on a hunting trip to the Blue Mountains near Meacham, Oregon. The members of the party were to share the expenses. Plaintiff declined because he felt that he could not afford it. Fisher proposed that plaintiff take care of the horses to help pay for the expenses of the trip. Plaintiff then accepted the proposal. On October 29th, plaintiff, Fisher and the others started on the trip. Plaintiff rode with Fisher in the latter's jeep. They were towing a horse trailer which was loaded with two horses. Near Meacham, Oregon, they turned off the main highway and proceeded along a mountain road. Fisher was driving. Fisher was killed and plaintiff was injured when the jeep and trailer veered off the road and fell approximately 300 feet down the embankment on the right hand side of the road. The evidence does not explain the specific cause of the accident. When Fisher and plaintiff did not appear at the campsite, the other members of the hunting party, who had preceded them, returned to investigate. They found their injured companions and carried them up to the road where they were taken in a pick-up truck to an ambulance which could not be brought to the scene of the accident because of the condition of the road.
According to the testimony of Kenagy, one of the members of the hunting party who returned to look for Fisher and plaintiff, the road was 'just a one track road,' 'about a twelve foot road and the gravel and dirt.' In describing the bank he stated, 'It was pretty steep going up on one side and it is just as steep down the other'. There was snow on the ground but, 'not right in the tracks,' and 'it was muddy right at the time there.' When asked to describe the marks left by the vehicle Kenagy testified: 'Well, you could definitely see the tracks there, it went to the left first, which is the upside of the road, just about as far as they could and still be on the shoulder, and then they turned and went down over the hill.' The testimony continued as follows:
'Q Trace the marks as you saw them. You saw them on the left-hand side as you said, which is the uphill side of the road?
'A I will say I seen the tracks go up there and I seen the tracks go down.
'Q From the left side of the road where did the tracks then go to?
'Q They crossed the road and off to the right.
'Q And could you identify the tracks as you followed them from the left-hand side of the road over to the right-hand side, with reference to say the trailer tracks, if you could tell them?
'Q Yes, there was a different tread on them.
'Q Were the tracks that you saw plain and straight in the angle they were going or were they skidded or what were they?
'Q No, they were straight.
I think your objection is a little late.' Kyllo, also a member of the hunting party, described the course of the vehicle by reference to the tracks as follows: 'Well, it made a right-hand turn there, and the rig went kind of high on the inside of the turn and then it went straight across the road right into the canyon.'
We shall now consider the evidence relating to plaintiff's status as paying passenger or guest. The proposal that plaintiff join the hunting party was made at Fisher's farm on October 27. Plaintiff's father, who was present, testified as follows:
'A * * * They were shoeing the horses that afternoon see, and there was Donald [plaintiff] and John [Fisher] and I out there sitting on the back of the pick-up truck--we were sitting there. That is all I recall that was there, outside of the man that was shoeing the horses.
'Q What was said about the hunting trip?
'A They were debating whether Donald was going to go or not at the time. He didn't think he could afford to go.
'Q You have to tell what was said, more than your conclusion, if you can, not quote it, but just the substance of it.
'Q Well, he asked him to go along, and he said he couldn't hardly afford it. Well then they talked like they usually do and this and that and they got together and John asked him to go along and take care of the horses; if he couldn't see no other way he could get by that way. He didn't know whether to go or not. He wanted me to go. I said I couldn't go on account of my legs. Outside of that there wasn't very much said.
* * *
* * * 'Q Before Mr. Fisher said take care of the horses, what was said about what sort of a trip and the expenses of it, etc., who was paying the expenses, or how were they doing it, if anything was said about it?
Kenagy was also present and he testified as follows:
'Q And what were the arrangements about the hunting trip--how about expenses--what was said by Mr. Fisher--you can only tell it if Mr. Fisher was present when it was discussed. Do you remember anything that was said about the expenses?
'A Well, we were going to pay our own way, I guess.
'Q Was it, as far as you knew, share the expenses all the way around?
'A Yes.
It would not be unreasonable for the jury to conclude from this testimony, together with the subsequent conduct of the parties, that plaintiff and Fisher had reached an agreement under which plaintiff was to contribute his share of the expenses for the hunting trip by taking care of the horses. 2 Under the test we adopted in Johnson v. Kolovos, 224 Or. 266, 273, 355 P.2d 1115 (1960), 'Any bona fide prearrangement for sharing expense will take the occupant out of the guest category.' It could be found that such a prearrangement was made in the present case.
We next consider whether there was sufficient evidence of negligence to permit the submission of the case to the jury. In order to get to the jury on an issue of negligence plaintiff must produce sufficient evidence from which the jury can reasonably conclude 'that it is more likely that there was negligence than that there was not.' Prosser, Torts (2d ed. 1955) § 42, p. 200 3. This principle of preponderating probabilities is applicable where the proof of negligence rests entirely upon circumstantial evidence, as it frequently does.
Ordinarily in negligence cases the complaint alleges specific negligent conduct, such as the failure to keep a lookout or to maintain control of the vehicle, and usually there is some evidence to support these allegations. In many cases the conclusion that the defendant was negligent can be reached only upon the basis of circumstantial evidence. Thus, ordinarily the proof of defendant's failure to maintain control of the vehicle or to keep a proper lookout does not rest upon testimonial evidence but upon an inference that because the accident occurred in a certain way the defendant failed to exercise care in the specific manner alleged.
Where the plaintiff cannot point to specific circumstances to support an inference of specific negligent conduct (e. g., lack of control, failure to keep a lookout) he ordinarily does not make out a prima facie case. But this is not always true. In some situations, although no specific conduct of the defendant can be pointed to as evidence of his negligence, it is reasonable to infer that the accident would not have happened had the defendant not been negligent. This is the doctrine of res ipsa loquitur. 4 The doctrine 'permits the drawing of an inference which rests upon no specific causative circumstance' as we put it in Powell v. Moore, 73 Or.Adv.Sh. 149, 364 P.2d 1094, 1101 (1961).
The doctrine differs only in degree from the familiar principle recognizing circumstantial evidence as a basis for proof of specific acts of negligence. 5 If the accident is of a kind which ordinarily would not have occurred in the absence of defendant's negligence, an inference is permissible that defendant was negligent in some...
To continue reading
Request your trial