Keefer v. Givens
| Decision Date | 13 June 1951 |
| Citation | 191 Or. 611,232 P.2d 808 |
| Parties | KEEFER v. GIVENS. |
| Court | Oregon Supreme Court |
Arno H. Denecke, of Portland (Wilbur, Beckett, Oppenheimer, Mautz & Souther, of Portland, on the brief), for appellant.
Randall B. Kester, of Portland (William E. Dougherty and Maguire, Shields, Morrison & Bailey, all of Portland, on the brief), for respondent.
Before BRAND, Chief Justice, and ROSSMAN, LUSK, LATOURETTE and WARNER, Justices.
This is an appeal by the plaintiff from a judgment in favor of the defendant, which the Circuit Court entered after the plaintiff had presented his evidence and the court had sustained a motion made by the defendant for an involuntary nonsuit. The action was based upon charges that the plaintiff, while riding in the defendant's automobile as a non-paying guest, sustained personal injuries through the reckless and grossly negligent operation of the automobile by the defendant. The motion for the involuntary nonsuit was predicated upon the grounds that the evidence failed to show (1) recklessness; (2) gross negligence; or (3) proximate cause.
The plaintiff's single assignment of error follows: 'The Court erred in granting respondent's motion for an involuntary non-suit against the appellant and in entering judgment thereon.'
The complaint contains the following specifications to the general charge of recklessness and gross negligence: excessive speed; failure to exercise control; and failure to maintain a lookout.
The misadventure occurred June 7, 1947, at about 1:00 a. m., near the intersection of East 82nd Avenue and Cooper Street in Portland. East 82nd Avenue runs north and south; Cooper Street east and west. Immediately prior to the misadventure the defendant was driving him automobile, a 1935 Ford, south on 82nd Avenue. The plaintiff was seated directly back of him in the rear seat. To the plaintiff's right was one Robert Carrington. To the right of the defendant in the front seat was one E. F. Hill. All four were friends of each other and were bent upon pleasure. The plaintiff, as well as Carrington and Hill, was a guest of the defendant.
The night was wet and very dark. Witnesses described it as 'a black night', 'a moist night'. The pavement was wet and a light rain or mist was descending. The visibility was poor. The car's only windshield wiper was on the driver's side. According to the witnesses, the windows were 'steamed up.'
The narrative given by the witnesses began with a friendly call made by the defendant about 8:45 p. m. at the home of the aforementioned E. F. Hill. Shortly the defendant drove Hill to a place called Hi Time Tavern where each drank, what Hill termed, 'two beers.' Sometime after they entered the tavern they were joined by Carrington and a little later the three went to a tavern at East 82nd Avenue and Stark Street known as East Is West Tavern, which they reached about 10:00 p. m.
When the defendant's deposition was taken prior to the trial, he testified that while he was at the East Is West Tavern, The parties stipulated that that answer should be deemed a part of the evidence in this case. The defendant's brief, referring to the four men and their activities in the East Is West Tavern, says: 'Each of the boys had a few beers.' There is nothing, however, in the record which indicates that the plaintiff had any knowledge of the defendant's drinking.
At about 12:30 a. m., the defendant, Hill and Carrington decided to leave the tavern and go to the home of one of the three men where they would have a bite of food. Outside the tavern they encountered the plaintiff and invited him to join them. He accepted the invitation and the four men entered the defendant's car. We have mentioned the positions which they took in the car.
Upon leaving the tavern the defendant drove south on 82nd Avenue, which is a four-lane thoroughfare. The space between curbs is 56 feet. Evidently the street is level, for no one mentioned a grade. The car proceeded at a rate of between 50 and 60 miles per hour. The plaintiff, in the following sentence, described the manner in which the defendant operated his car: 'Quick starts and stops at streets, cutting in and out of what little traffic there was.' Other witnesses who engaged in similar comment spoke of the defendant's 'Fast changes of gear and quick acceleration.' There was little traffic upon the streets except at the intersection of 82nd Avenue and Division Street. Presently they neared the intersection of 82nd Avenue and Cooper Street, that being the scene of the accident. By that time the car had traveled about three miles since the men had entered it upon leaving East Is West Tavern. In that three miles no one had complained about the manner in which the defendant was operating his car.
As the scene of the mishap was approached, Hill, Carrington and the plaintiff, according to their testimony, noticed no car in sight. However, Hill, who it will be recalled, was seated in the front seat beside the defendant, explained that due to the absence of a windshield wiper in front of him and the steamed-up condition of the glass he could not see through the windshield. When the car was some distance from the intersection, the defendant asked Hill to reach into the glove compartment, which was in the dashboard directly in front of Hill, and obtain a bottle opener. In order to open the glove compartment it was necessary to press upon a small clasp or lock which formed a part of the compartment door. After Hill had opened the door and had run his hand through the unlighted compartment, he failed to find the bottle opener and closed the door. When he reported that fact to the defendant, the latter said, 'Well, I will get it,' and, removing his right hand from the steering wheel, leaned to the right, extended his right arm to its full length, opened the door and ran his hand into the compartment. While in that position, the defendant's head, according to Hill, was 'about in the center of the car' and no longer back of the steering wheel. We assume that that item of evidence was given because the windshield wiper cleared only the part of the windshield immediately in front of the steering wheel.
Hill described what occurred when the defendant leaned to the right and searched the glove compartment, as follows: 'That's the time that the car, I felt the car go out of control.'
We quote further from his examination, as follows:
'
'
'
* * *
* * *
Upon objection, those words were stricken, and thereupon the witness answered as follows:
* * *
* * *
Carrington, whose injuries rendered him unconscious for nine hours, recalled that the speed of the car was '55 or a little better' and also the 'quick stops, quick getaways.' He also remembered that after Hill had failed to find the object in the glove compartment which the defendant wished, the latter leaned over and ran his hand into the compartment. He added, 'It seems like a picture in my mind of that hand leaning over there, and I knew he shouldn't be leaning over.' He was unable to recall anything additional.
The plaintiff described the erratic movement of the car in these words: 'It was a good block, about a block and a half before we hit. We was going terrific, and you could feel the car, it went back and forth, slewed back and forth, back in three times that I remember of. * * * Well, the back end moved back and forth like this, more or less skidding from one side to the other. * * * I remember of three times of skidding, but after that I don't remember. I remember saying one phrase, just, 'Look out, 'we're going to hit."
After the car had escaped from the defendant's control it pursued an erratic movement for a block and a half, in the course of which it veered from the west to the east side of 82nd Avenue where it struck a power pole. The latter stood beyond the curb which marked the east edge of the pavement. When the car came to rest it faced in a northeasterly direction. Photographs taken after the accident showing the badly damaged car resting against the pole, suggest that the car must have skidded sideways into the pole. According to the photographs, the left front and rear wheels were badly bent under the car, indicating that it slithered sideways with great force. Even a large area of the top of the car on the left was badly stove in.
The evidence was sufficient to denote that the area adjacent to the place where the misfortune occurred was a 'residence district' as that term is used in Oregon Laws 1941, Chapter 458, which...
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