Layman v. Heard

• Decision Date: 06 April 1937
• Citation: 66 P.2d 492,156 Or. 94
• Parties: LAYMAN v. HEARD.
• Court: Oregon Supreme Court

66 P.2d 492

156 Or. 94

LAYMAN v. HEARD.

Supreme Court of Oregon

April 6, 1937

Department 1.

Appeal from Circuit Court, Multnomah County; John P. Winter, Judge.

Action for injury by George H. Layman against Albert S. Heard. In his complaint plaintiff alleged that he was guest of defendant in the latter's automobile at the time of his injury, which he avers resulted from gross negligence. From a ruling of the circuit court which ordered a new trial after judgment had been entered for defendant upon a directed verdict, defendant appeals.

Affirmed.

Arthur L. Moulton, of Portland, for appellant.

Zanley F. Galton and Elton Watkins, both of Portland (Goldstein &amp Galton, of Portland, on the brief), for respondent.

ROSSMAN Justice.

The sole issue presented to this court is whether the circuit court erred when it set aside a judgment in favor of the defendant, based upon a directed verdict, and ordered a new trial. Specifically, the defendant contends that the evidence fails to indicate that (a) the defendant drove his car in a grossly negligent manner; and (b) the evidence conclusively proves that the plaintiff acquiesced in the manner in which the car was being operated by remaining in it.

In November of 1934 the plaintiff accepted the defendant's invitation to ride with him in his car from Portland, where the two men lived, to a ranch owned by the defendant's father, which was four miles off United States Highway No. 30 near Haines. The two planned to hunt elk in the vicinity of the ranch. In the car besides the two men was the sister of the defendant, Mrs. Frances Peterson. The distance from Portland to Haines is about 328 miles. A light trailer was attached to the car in which the men placed their bedding baggage, and hunting equipment. Although the plaintiff referred to the defendant's car as a new one, he described its front tires as "rather smooth" and the rear ones as not "real good." He was aware of their condition before the trip was undertaken. Although the plaintiff swore that the defendant "was hitting along around 50 miles," the trip was made without incident.

November 12th, after the two men had been hunting for seven days, they were ready to return home. The plaintiff placed in the trailer 200 pounds of elk meat and 60 pounds of luggage. At 7 a.m. on that day the three were seated in the car preparatory to starting home. The defendant was in the driver's seat the plaintiff was beside him and Mrs. Peterson was in the rear seat. Just before the defendant started his car his father said to him, according to the plaintiff, "Now, Albert, it is going to be icy this morning; you had better be careful how you drive." We quote further from plaintiff's testimony: "He (defendant) says, 'Oh, I know how to drive,' and it seemed to kind of make him mad if you said anything to him about driving at all, and that's just-he never told his father goodbye after he spoke about driving." The plaintiff thought that the defendant was "kind of out of sorts."

After the car had reached the main highway little patches of ice and frost were encountered in low and shady places. According to the plaintiff and Mrs. Peterson, they passed over five or six icy places before they reached La Grande, 40 miles from the ranch. According to these two witnesses, their speed was 40 to 55 miles per hour. The plaintiff "figured that he (defendant) was going too fast for the conditions of the road," and the operation of the car made him feel that he was "kind of on an uneasy seat." Mrs. Peterson declared, "My heart was in my mouth." Both protested many times. The following is quoted from the plaintiff's testimony: "I told him, I says, 'Albert, we have all day to make Portland. What's the use of driving so fast?' and he just seemed to drive faster. Finally, I said to him, 'Good Lord! man, slow up a little bit. You are going to have us in an accident,' but, he says, 'I am driving this car; I know how to handle it."' According to the plaintiff, his protests did not cause the defendant to reduce the speed. He believed that the defendant was "mad" or "peeved" over something that had occurred, and thought that possibly the admonitions that had been given to him just before they started accounted for his mental condition. Mrs. Peterson, after declaring, "I don't like to go too fast," and admitting that she did not look at the speedometer, swore, "I told him (defendant) two or three times to not go so fast." She testified that her brother merely replied, "I am driving this car," and that he did not reduce his speed. She stated that the speed of the car "was all that was wrong; he was driving too fast for such roads." The plaintiff likewise limited his objections to the factor of speed.

At La Grande the defendant drove the car to a filling station where the party remained for about ten minutes. At that point, according to the plaintiff, he said to the defendant, "For Heaven's sakes, take it easy from here on. Don't try to make Portland on a record drive." He added, "I figured now that little peeve has worn off and he probably would be all right." Then the parties resumed their seats in the car and proceeded on their way to Portland. After they had traveled a distance of 3.2 miles the accident occurred which ultimately resulted in this action. West of La Grande the highway crosses the Blue Mountains and at the place of the accident it is slightly upgrade and winding. According to the plaintiff, in this distance of 3.2 miles no ice was encountered except the spot which we shall now mention. As the car was approaching this place at a speed of less than 50 miles per hour the plaintiff saw, 50 yards ahead in the shade of some trees, an ice-covered area and called out, "There's ice ahead. Look out!" Whether the defendant applied his brakes or not the plaintiff was unable to say, but when the car reached the ice it spun around and then hurtled down a sharp, rocky decline at the side of the road, resulting in the injury of the three occupants.

In addition to the above, the record indicates: That both the plaintiff and the defendant were about 50 years of age; that the plaintiff also was an experienced driver; that he was familiar with the road over which he was traveling; that highway No. 30 from Haines to the scene of the accident is paved, and that on the occasion in question it was dry. Mrs. Peterson described the defendant as "a pretty good driver, only he drives fast." For five years she had been in the plaintiff's employ.

Section 55-1209, Oregon Code 1930, which defines the circumstances under which a guest injured in an automobile accident may obtain a judgment against his host, employs the term "gross negligence." Numerous decisions of this court have attempted to define that term, the most recent of which is Storm v. Thompson (Or.) 64 P.2d 1309. In that decision, as well as in the other recent decision entitled Hartley v. Berg, 145 Or. 44, 25 P.2d 932, many definitions of the term "gross negligence" are reviewed. Without reviewing these definitions once more, we express the belief that a driver who operates a car, some of the tires of which are smooth, at a speed of 40 to 55 miles per hour, over a roadway upon which icy stretches are occasionally encountered, is driving in a manner which can properly be deemed grossly negligent. Certainly such a conclusion is not at variance with Rauch v. Stecklein, 142 Or. 286, 20 P.2d 387, with which we remain entirely satisfied.

The sole issue presented by this appeal, in our opinion, is whether the plaintiff was guilty of contributory negligence by returning to the car at La Grande. The defendant, in arguing in behalf of the affirmative of this issue, cites Hartley v. Berg, 145 Or. 44, 25 P.2d 932; White v. Portland Gas & Coke Co., 84 Or. 643, 165 P. 1005, 1007; ...