Lawry v. McKennie

• Decision Date: 18 December 1945
• Citation: 177 Or. 604,164 P.2d 444
• Parties: LAWRY <I>v.</I> McKENNIE ET AL.
• Court: Oregon Supreme Court

177 Or. 604

164 P.2d 444

LAWRYv.

McKENNIE ET AL.

Supreme Court of Oregon.

Argued December 4, 1945.

Affirmed December 18, 1945.

Automobiles

1. Evidence that truck driver, traveling about 35 miles per hour, slowed down as he was about to meet horse and rider approaching on left shoulder of highway, that horse did not appear to be out of control, and that truck driver pulled to the left of highway as far as approaching traffic would permit, but that horse collided with truck on paved portion of highway, was insufficient to establish gross negligence on part of truck driver so as to render truck owner liable for death of guest.

Automobiles

2. Where horse and rider were on left shoulder of highway as truck approached, horse did not appear to be frightened, and rider gave no signal to truck driver to stop, statute requiring motor vehicle operator, on signal, to stop vehicle and remain standing until the animal had passed, was inapplicable.

Evidence

3. Where the physical facts and other testimony established that a horse left the shoulder of highway and collided with approaching truck on paved portion of highway, testimony of witness, who was a quarter of a mile away and whose view of actual collision was cut off, to effect that truck struck the horse, must be disregarded.

                  See 5 Am. Jur. 649
                  34 C.J.S., Evidence, § 1042
                

Before BELT, Chief Justice, and ROSSMAN, KELLY, BAILEY, LUSK and HAY, Associate Justices.

Appeal from Circuit Court, Multnomah County.

E.M. PAGE, Judge.

Action by Joseph F. Lawry, administrator of the estate of Lillian Lawry, deceased, against F.H. McKennie and Conrad D. Smith for death by wrongful act, arising out of a collision between a horse and a truck. From a judgment of involuntary nonsuit, plaintiff appeals.

AFFIRMED.

Leo Levenson, of Portland (with William J. Prendergast, Jr., and Irvin Goodman, both of Portland, on the brief), for appellant.

Frank S. Senn, of Portland (Senn & Recken, of Portland, on the brief), for respondents.

LUSK, J.

This is an appeal from a judgment of involuntary nonsuit in an action to recover damages for death by wrongful act.

The sole question for our determination is whether the plaintiff produced substantial evidence of gross negligence on the part of the defendants.

The case grows out of a collision between a horse ridden by a sixteen-year old boy, Victor Christensen, and a Ford truck owned by the defendant F.H. McKennie and operated by the defendant Conrad D. Smith as the latter's employe. Lillian Lawry, a twelve-year old girl, was a passenger on the truck, "riding as an invited guest" as the complaint alleges and the proof shows. She, Victor Christensen, and the horse were all killed in the accident. This action was brought by Joseph F. Lawry as administrator of the estate of Lillian Lawry, deceased.

The accident occurred on the afternoon of June 2, 1944, at a point about four and a half miles south of Oregon City on Highway 99 E. The day was clear. Smith was driving north to Portland, hauling a load of cordwood. The horse and rider were approaching the truck from the opposite direction. They were on the same side of the highway as the truck — the east side — but on the shoulder to the truck's right. The collision occurred on the paved portion of the highway.

The complaint charges that the defendants were guilty of gross negligence in operating the truck at a dangerous rate of speed, in failing to stop when the driver knew or should have known that the truck was frightening the horse, and in failing to keep the truck under control.

On the trial two eye witnesses to the accident testified — Carl Christensen, the father of the boy who was killed, and the defendant Smith, who was called by the plaintiff as an adverse witness. The only other witness on the question of negligence was H.L. Benninghoff, a state police officer who came to the scene of the accident about three and a half hours after it occurred.

The witness Christensen operated a tavern located on the east side of the highway something less than a quarter of a mile south of the point where the accident occurred. In the vicinity of the tavern the highway, as it goes north, begins to rise on a gradual grade which continues for a distance of well over a quarter of a mile, and, at the time of the accident, the truck was going up hill and the horse coming down. Christensen testified that he stood on the west side of the highway opposite the tavern and watched his son as he rode north and as he was returning. He observed the truck as it passed him, and says that as it went up the hill its speed was about forty-five miles an hour. The horse was on the shoulder as it approached the truck and was being ridden at a trot. When the truck was about 100 feet from the point of impact it veered from side to side, cordwood was flying from it, and he saw the truck strike the horse. Asked what part of the truck struck the horse he said, "the front part, the radiator and the fender". He indicated by a mark on a photograph that the point of collision was a short distance west of the east edge of the paved portion of the highway. He swore that the truck did not slow down until it began to veer. He could not say how many times it veered back and forth. He went immediately to the scene of the accident, and said that he found scattered wood from the truck for about 100 feet, "though I may be a little mistaken on that". The horse was in the ditch with the truck.

The following testimony is taken from his cross-examination:

"Q You saw the truck there? Do you mean to say he pulled to the left?

"A Yes, to the left, and to the right, and that is when the wood started flying off.

"Q Did he get over the center line?

"A Yes, yes, he switched over to the other side.

"Q How far did he get over the center line, if at all?

"A Well, I would not say he went over the center line but he was in the middle of the road for awhile.

"Q You mean with his wheels?

"A Yes, sir.

"Q And other cars were coming toward it, and they passed?

"A Yes, sir.

* * * * *

"Q Isn't it a fact that the horse reared up about the time the truck and the horse came together?

"A No, the horse did not rear up. It might have got frightened seeing the wood flying off, and the driver got confused, but the horse was not in the habit of doing anything like that.

"Q In fact, the horse got out on the pavement and collided with the truck didn't it?

"A I don't know how that was done.

"Q At any rate, the horse got out on the pavement and collided with the truck?

"A No, I think they both got confused and they just —

"MR. SENN: I move to strike that out as a conclusion.

"THE COURT: State just what happened and not what you think happened.

"MR. SENN: Q Isn't it a fact, that the wood began to fall off just about the time of the impact?

"A No, I don't see why it would.

"Q When the impact came, of course, the truck went out of control and went into the ditch, on the right-hand side, didn't it?

"A Yes, it — the truck was in the ditch.

"Q On its right-hand side?

"A Yes."

The testimony of the defendant Smith was in substance as follows: The deceased girl, Lillian Lawry, and another young girl had ridden with him on the day of the accident from Portland to Hubbard, which is south of Oregon City, where he loaded the truck with wood. The truck was a ton and a half 1933 Ford, and was loaded with three cords of wood weighing six and a half to seven tons. On the return trip Lilliam Lawry sat on the right-hand side of the driver's seat. Driving up the hill on which the accident occurred he was in third-gear — "that was all the faster it would go up the hill". He estimated the grade to be about eight per cent. He first saw the horse and rider when they were about 200 feet away. His speed was then twenty-five miles an hour. The horse was on the shoulder (which was about six feet wide) galloping as fast as he could go, but did not appear to be excited. Upon seeing the horse, Smith decreased his speed to between eighteen and twenty-two miles per hour. He testified:

"Q What did you do when you saw this horse, two hundred feet ahead of you?

"A I merely pulled over to the yellow line, on my left and gave him all the room I could.

"Q Did you slow the truck down?

"A Yes, sir.

"Q How slow did you slow it?

"A I could not say.

"Q What was the horse doing when you started to slow down?

"A Running down the side of the road.

"Q Was it walking or galloping?

"A Galloping.

"Q Was the horse excited?

"A No, it did not seem to be."

There was considerable opposing traffic and he could not get farther over to his left because of another truck which was approaching from the north. When the horse came opposite the truck "it reared up and came down on the cab". The front end of the truck did not come in contact with the horse. He identified two photographs of the truck taken after the accident. The bumper does not appear to have been touched. The upper portion of the radiator is pushed over towards the left front fender, lying almost against it. The front corner of the roof of the cab has a great dent in it and is folded down over the windshield. The windshield is shattered. Smith testified that after the impact he lost control of the truck, which moved thirty feet into the ditch carrying the horse with it on top (meaning, evidently, on top of the hood). The radiator was bent in the manner described above when the horse fell upon it. The truck did not "weave", and, heavily loaded as it was,...