Lemons v. Holland
| Decision Date | 03 August 1955 |
| Citation | 286 P.2d 656,205 Or. 163 |
| Parties | Hazel LEMONS and Byron Lemons, Joint Administratrix and Administrator of the Estate of James Cedric Lemons, deceased, Respondents, v. Margery HOLLAND, appearing herein by Leslie Holland, her guardian ad litem, and Leslie Holland, Appellants. |
| Court | Oregon Supreme Court |
Grant & Fuchs, and Gene C. Rose, of Baker, for appellants.
Banta, Silven & Horton, of Baker, and Wilson & Olsen, of John Day, for petition.
Before WARNER, C. J., and TOOZE, ROSSMAN, LUSK and PERRY, JJ.
Plaintiffs have filed a petition for rehearing alleging that we erred in several of the conclusions reached by us in our original opinion handed down June 8, 1955: Lemons v. Holland, Or., 284 P.2d 1041.
Plaintiffs' principal complaint is directed to our conclusions respecting the absence of substantial evidence to support the allegations of negligence made against defendants. Our attention is again called to the testimony in the record, and to the inferences which plaintiffs claim may reasonably be drawn therefrom, to sustain their contention originally made and ably presented in their brief, and now repeated, that there is substantial evidence to support the verdict.
We carefully scrutinized and considered the entire record before arriving at our conclusions. Everything now called to our attention in plaintiffs' brief in aid of the petition for rehearing was fully evaluated upon our original consideration of the matter. We find nothing new that causes us to revise our views as originally expressed.
The inferences necessary to support the charges of negligence, and to which plaintiffs again direct our attention, are inferences based largely upon speculation, and not upon established facts. As the basis for the inferences necessary to be drawn to make out a case, plaintiffs do and must rely upon the erroneous premise that the point of impact on the highway is definitely established by the evidence.
As we pointed out in our original opinion, the point of impact is not so established. It is conceded that the location of the broken headlight glass and radio aerial on and to the south of the center line of the highway at a point 30 feet westerly from where the tire marks of defendants' car commenced is definitely established as a physical fact, although such physical fact rests upon the oral testimony of sheriff Damon, plaintiffs' principal witness. It also is an undisputed physical fact that the tire marks made by the left wheels of defendants' motor vehicle ran in a straight line westerly for more than 200 feet, and that they were on the north or right side of the highway, two feet from the center line thereof. Of course, this physical fact also rests upon the testimony of sheriff Damon, corroborated by that of the witness Green, but there is nothing whatever in the record to dispute it, either by way of direct evidence or by any reasonable inference that might be drawn from the evidence produced. It accords with the positive testimony of the driver of defendants' vehicle. Further, it is a physical fact that the impact between the automobile and the body of decedent occurred on that part of the front of the car between the right side of the left front headlamp and the left front side of the hood. There was a dent on the hood of the car, and no dents elsewhere; in particular, there were no marks or dents on the left front fender. These facts are shown by the photograph of the front of the car taken by sheriff Damon within a short time after the accident.
Therefore, in the light of these known facts, and as we said in our original opinion, a determination that the location of the broken glass and radio aerial on the highway marked the exact point easterly and westerly on the road where the impact occurred as claimed by plaintiffs could be reached only by a highly speculative and unreasonable inference. To so conclude would necessarily be the result of mere guesswork. Purely speculative inferences or conclusions do not constitute substantial evidence. Lynch v. Clark, 183 Or. 431, 440, 194 P.2d 416.
As we originally pointed out, the physical facts in this case demonstrate beyond any question that the impact occurred at least three feet north of the center line of the highway; the broken glass and radio aerial lay on and to the south of the center line. How this debris got there no one knows, nor could know, except that it was thrown by and from the rapidly moving vehicle at some moment following the impact. When decedent's body was thrown from contact with the car, it was thrown in a diagonal direction (southerly and westerly) to the south edge of the pavement, although the automobile kept moving in a direct line westerly. It may be that the glass and radio aerial were also so thrown. Many speculative conjectures might be made as to just what happened, and how it happened, with one guess as good as another, but actions for negligence are not determined by mere guesswork.
Plaintiffs invite our attention to the following portion of our original opinion:
'* * * To fix the location of the glass from the standpoint of an easterly and westerly direction as the point along the highway where the impact occurred, would require a finding that when decedent's body was struck and broke the glass in the headlight the glass was thrown directly and immediately to the left of the moving car for a distance of three or four feet.'
and in their brief say:
'We agree with the Court that 'obviously, such a finding would be speculative'. We will go further and state that in our opinion, it would be most unlikely, in fact well nigh impossible for the glass to be thrown in that manner. So far as respondents are concerned, they have never so contended. * * *.
Plaintiffs are in error when they say no measurements were made. With a tapeline, and assisted by Green, Damon made exact measurements of the tire marks and other distances involved.
Furthermore, plaintiffs are in error when they say there is an inconsistency between the statements of Damon respecting the location of the debris and the location of the tire marks. Obviously both statements may be true. There is no evidence in the record to dispute either, nor is there any evidence in the record from which a reasonable inference might be drawn that one or the other of such statements is false. The facts testified to were physical facts; they were facts open to view by anyone. They were testified to positively by Damon, a disinterested witness, and they were not contradicted. The testimony of Damon was not inherently improbable, incredible, nor contrary to physical facts or common observation and experience, and was based upon actual observation and investigation in his capacity as an officer of the law. In such circumstances, neither the jury nor this court would have the right to speculate upon whether one or the other of the statements is untrue, or disregard either. 20 Am.Jur. 1030, Evidence, § 1180. Had the statements been inconsistent in fact, then we agree that it would have been the sole province of the jury to determine wherein lay the truth.
Moreover, we cannot agree with plaintiffs that if Damon made an error in his location of either the debris or the tire marks, it is more likely that he erred as to the tire marks. In our opinion, the reverse would be true. As an investigating officer, Damon certainly would be primarily concerned in the movements of the automobile causing the death, rather than in the exact location of the debris on the highway. However, that is relatively unimportant to the decision in this case.
In our original opinion, we did not discuss the 'stopping within range of vision' doctrine, deeming such discussion unnecessary to our decision. However, the question was presented to us in the briefs of the parties in connection with an instruction given the jury. In their brief in support of the petition for rehearing, plaintiffs again raise the question. They do so in arguing the reasonableness of some of the inferences they seek to draw from the established facts.
Although in some jurisdictions it is the law that a driver of a motor vehicle is guilty of negligence as a matter of law if he drives at a rate of speed that will not permit him to stop within the range of his vision, it is not the law of this state. In Alt v. Krebs, 161 Or. 256, 261, 88 P.2d 804, 806, Mr. Justice Lusk, speaking for the court, said:
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