Larson v. Heintz Const. Co.
| Decision Date | 30 October 1959 |
| Parties | Lucile LARSON, Appellant, v. HEINTZ CONSTRUCTION CO., Warren Northwest, Inc., Charles Heintz and Myron W. Ryan, co-partners, and Billy Wayne Phillips, Respondents. |
| Court | Oregon Supreme Court |
Paul W. Haviland and Hugh B. Collins, Medford, argued the cause and filed briefs for appellant.
Robert T. Mautz and Earl F. Bernard, Portland, argued the cause for respondents. With them on the briefs were David Sandeburg and Merwin Rankin, Portland.
Before LUSK, J., presiding, and ROSSMAN, WARNER and O'CONNELL, JJ.
This is an appeal by the plaintiff, Lucile Larson, from a judgment which the circuit court entered in favor of the defendants, five in number. The defendants Heintz Construction Co. and Warren Northwest, Inc., are corporations which construct highways. The defendants Charles Heintz and Myron W. Ryan constitute a partnership which rents road building equipment, such as motor trucks, to contractors. The fifth defendant is Billy Wayne Phillips who, at the time the plaintiff sustained the injury which underlies this case, was the driver of a motor truck belonging to the partnership and was returning to a gravel dump for a load of crushed rock to be used in roadbuilding. Although the matter is not free from controversy we shall deem, for the purposes of convenience, that Phillips was in the employ of the defendant Heintz Construction Co. The plaintiff's (appellant's) brief states that 'the vicarious liability is not involved in this appeal.' After all parties had rested and the defendant Warren Northwest, Inc., had moved for a directed verdict the trial judge ruled that the motion should be granted; but at the request of the plaintiff and pursuant to ORS 18.140 submitted the case to the jury as to all of the defendants with leave to the defendant Warren Northwest, Inc., to move for judgment in its favor if the jury returned a verdict for the plaintiff. The verdict was in favor of the defendant Phillips, which the parties, under the instructions given to the jury, treat as a verdict for all of the defendants.
While riding in an automobile which her husband, Ray B. Larson, was operating the plaintiff sustained injury when the car came into contact with a truck owned by the defendants Heintz and Ryan which was driven by the defendant Phillips. In this action the plaintiff seeks the recovery of damages for the injury thus sustained. The highway upon which the accident took place was under construction. The plaintiff contends that the defendants Heintz Construction Co. and Warren Northwest, Inc., were performing the construction work as a joint venture. She alleged that all five defendants were responsible for the operation of the truck and that it was driven in a negligent manner. After this appeal was taken it was dismissed upon stipulation as to the defendant Warren Northwest, Inc. Hence, this case no longer affects that party. Owing to that fact we may hereafter refer to the Heintz Construction Co. as the road building contractor although we realize that dismissal of the appeal did not determine the controversy as to which of the two road building defendants was responsible for some of the phases of the undertaking in issue.
The plaintiff submits eight assignments of error. The first charges error upon an order which struck from the complaint paragraph V. The second predicates error upon an order which denied the plaintiff's motion to withdraw from the jury's consideration an affirmative defense submitted in the answer of the defendant Warren Northwest, Inc. The fourth and fifth make similar claims as to defenses submitted by the answer of Phillips and by the answer of Heintz and Ryan. The third challenges a ruling which denied the plaintiff's objection to a question submitted to defendants' witness Roy E. Lake. The sixth and seventh challenge instructions given to the jury. The eighth complains because the plaintiff's motion for a new trial was overruled.
September 12, 1952, at about 4:45 p. m. the plaintiff's husband was driving the Larson car northerly upon Highway 97 at a point between Crescent and Gilchrist. The plaintiff was seated to his right in the front seat and to her right a friend of the Larsons, Mrs. Mary Brown, was seated. The motor truck driven by the defendant Phillips, to which we have referred, was ahead of the Larson car and was going in the same direction as it. The accident occurred when the car sought to overtake the truck. The roadway, 22 feet broad, was dry, straight and level. The weather was clear and warm. Although about 10 miles of the road was under construction, the segment where the accident occurred was complete apart from the fact that the crushed rock shoulders had not been placed and a yellow line, marking the center of the pavement, had not been painted.
To the left of a motorist traveling north a quarry road 18 feet broad entered Highway 97 at a point near the place where the accident was destined to take place. That road which was only a few hundred feet long led into a place where a rock crusher was operating, a pile of crushed rock was kept and some appurtenant activities were conducted. As he approached the quarry road Phillips intended to turn to his left and enter it.
Phillips, as an adverse witness called by the plaintiff, testified that when he drew within about 300 feet of the quarry road he glanced into his rear-view mirror and saw a car about 500 feet to his rear. It was the Larson car, although Phillips was unaware of its identity and unacquainted with the Larsons. There were no other cars within sight either in front or behind. When Phillips observed the car behind he prepared to make a left turn into the side road. According to him, he gave a signal with his left arm announcing an intention to turn to the left and changed his course so that his truck crossed the unmarked center of the pavement until his left wheels were 5 feet beyond the center. Then he righted his course and neared the quarry road with his truck running virtually parallel with the edges of the pavement but with his left wheels 5 feet beyond the center of the road. His truck, if his impression was accurate, was 7 1/2 feet wide. Accordingly, if his left wheels were 5 feet left of the center there was upon that side of the road only 6 feet of unoccupied space, but upon the right half there were 9 feet free for other users. He also swore that since his truck was well over the left side there was no further need for maintaining a signal and pulled in his arm. By that time he had reduced his speed, so he estimated, to 15 miles per hour.
Phillips swore that when the truck was in the position just mentioned and was about to turn into the side road the Larson car, traveling at a very fast rate of speed, drew close to the truck's left side and then sideswiped it. He testified that the car had given no signal whatever. According to him, the Larson car tore from the truck its left running board and upon coming into contact with the left 2 feet of the truck's heavy front bumper bent that part from a turn to the rear into one straight ahead.
The unchallenged evidence indicates that the left wheels of the Larson car, while the latter was attempting to pass the truck, left the pavement and threw up a cloud of dust. Shortly the car overturned, but before coming to rest righted itself. When it stopped it was in a ditch 162 feet and 4 inches from the point of impact. In the car's uncontrolled movements the plaintiff and Mrs. Brown were thrown from it.
Mr. and Mrs. Lewis Lynn, who reside in Prineville, were driving from Prineville to Alturas, California, when this accident happened. Both, as witnesses for the plaintiff, testified that as they neared Crescent they saw a cloud of dust rise from the roadway and upon arriving at its place of origin saw the truck, the wrecked Larson car and two women lying on the ground unconscious. Mr. Lynn noticed no other car at that place when he reached it, and, according to him, none arrived at the place until five or ten minutes had passed. Mrs. Lynn gave similar testimony. The defendants claim that Mr. Larson drank intoxicating liquor prior to the accident and that we was under its influence. Mr. Lynn testified that upon arriving at the scene of the disaster he noticed that Larson was still in his car and engaged him in conversation. While so doing he wiped blood from Larson's face. He swore that he smelled no liquor upon Larson's breath and noticed no sign of intoxication. Mrs. Lynn likewise observed no indications of intoxication.
Fay A. Holley, a sergeant in the State Police, came to the scene of the accident about twenty minutes after it had occurred. By the time that he reached the scene other people were there and thereupon he asked each one whether he had seen the accident occur. All replied in the negative. Among those who were present when Holley made his inquiries was an individual by the name of Roy E. Lake to whom we will later refer again. Lake helped Holley make some measurements. We take the following from Holley's testimony in which his reference is to Larson:
'Q. And in connection with your conversation with him did you observe him closely? A. Yes, sir. I talked to him and took notes.
'Q. Did you observe any odor about him of any alcoholic beverages? A. Yes, sir.
'Q. In connection with your observation of him would you state whether or not there was any other indication about his actions that he had had anything to drink? A. No, sir.
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'Q. You mentioned that you detected the odor of liquor on Mr. Larson's breath. Was it quite evident? A. I could smell it, sir.
'
Mr. Holley also testified that he detected the odor of liquor upon the breaths of the two women. The following is quoted from his further testimony:
'Q. What did you find in the Larson car at the scene in...
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