Lemons v. Holland
| Decision Date | 03 August 1955 |
| Citation | 284 P.2d 1041,205 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 |
A. S. Grant, Baker, for appellants. On the briefs were Grant & Fuchs, and Gene C. Rose, Baker.
Harold Banta, Baker, for respondents. On the brief were Banta, Silven & Horton, Baker, and Wilson & Olsen, John Day.
Before WARNER, C. J., and TOOZE, ROSSMAN, LUSK and PERRY, JJ.
This is an action for damages for the death of James Cedric Lemons, plaintiffs' intestate, resulting from the alleged negligent operation of a motor vehicle by defendant Margery Holland. The case was tried to a jury. A verdict was returned in favor of plaintiffs in the sum of $10,000; judgment was accordingly entered against defendants, and they appeal.
The action is prosecuted by Hazel Lemons and Byron Lemons, as joint administratrix and administrator of the estate of James Cedric Lemons, deceased, for the benefit of said Hazel Lemons, as widow and Patricia Lemons, daughter and dependent, of decedent, pursuant to the provisions of ORS 30.020.
Defendant Margery Holland is the minor daughter of defendant Leslie Holland, and a member of his family. At the time of the accident hereafter described, defendant Leslie Holland and his wife were the owners of a 1951 Pontiac four-door coach automobile, which was kept and maintained for family purposes.
In their brief on this appeal, defendants set forth eleven assignments of error. Assignments of error numbered I, II, and III are as follows:
(1) The court erred in denying defendants' motion for an involuntary nonsuit; (2) the court erred in failing to give the following requested instruction: 'Members of the Jury, I instruct you to return a verdict in favor of the defendants.'; and (3) the court erred in denying the motion for judgment in favor of defendants notwithstanding the verdict.
Defendants' fourth assignment of error is directed to the action of the trial court in overruling their general demurrer to the complaint. The remaining assignments of error are directed to certain requested instructions refused by the court, and to other instructions given by the court. The view we take of this case will render unnecessary a discussion of any of the assignments of error other than the first three.
The first question presented is whether there is any substantial evidence in the record to support the verdict. The question of the insufficiency of the evidence was the question presented to the trial court by the motion for a nonsuit, the motion for a directed verdict, and the motion for judgment notwithstanding the verdict, all of which were overruled. It is axiomatic that in considering that question on this appeal we must view the evidence in the light most favorable to plaintiffs. They are entitled to the benefit of every just inference that may reasonably be drawn from the evidence in their favor. It is necessary, therefore, that we carefully examine the entire record.
During all the times material to this litigation, U. S. Highway 26, commonly known as the John Day Highway, has been and is a public highway, extending in a general easterly and westerly direction through Grant county, Oregon, and connecting, among other places, the cities of Mt. Vernon and Dayville, located in said county. Dayville is located westerly from Mt. Vernon. The highway between Mt. Vernon and Dayville, particularly at the scene of the accident, is a hard-surfaced highway with graveled shoulders of varying widths on each side, and the paved portion is 20 feet in width. The center line of the highway is marked with a yellow stripe. At the place where the accident occurred the road is straight and level, affording a clear vision for a quarter of a mile or more both easterly and westerly on and along said highway. Shortly before the accident some work had been in progress in widening the gravel shoulders along the road at that point, and gravel had been dumped on the shoulders for that purpose. At the time of the accident, it was very dark, but the pavement was dry, and there was neither rain, mist, nor fog which might obscure the vision.
Prior to and at the time of the accident, decedent, with his family, lived on the south side of the highway at a point approximately 400 feet westerly from the scene thereof, and had lived there for a considerable period of time. Defendants lived a short distance easterly from Mt. Vernon.
On November 28, 1953, between the hours of 8 p. m. and 9 p. m., the defendant Margery Holland drove from her home through Mt. Vernon to the home of a girl friend who lived somewhere west of Mt. Vernon. The purpose of this visit was to make arrangements to attend a dance in Prairie City, Oregon, a community located about 20 miles easterly from Mt. Vernon. The arrangements were completed, and Margery returned to her home, where she changed her clothes and generally prepared for the dance.
Between 9:30 and 10 p. m., Margery left her home and started the trip to get her girl friend in the family automobile. It might be stated at this point that the circumstances, including the late hour, justify an inference that Margery was hurrying back to pick up her girl friend so that they could be on their way to the dance.
When Margery reached a point on U. S. Highway 26, approximately one-half mile west of the city of Mt. Vernon, her car struck and killed plaintiffs' decedent. Grant county sheriff Robert Damon was immediately called and reached the scene of the accident about 10 p. m. He made some investigation that night and took some pictures of the body of decedent and the Holland car. The next morning he made a more complete investigation at the scene. He testified as a witness for the plaintiffs. The following is from his direct examination:
'A. It was 9:50 when I arrived at the scene of the accident.
'Q. Go on. A. It was very dark; and I found the remains lying on the left hand side of the road, just partly on the edge of the pavement and partly on the gravel, and at that time there had been gravel dumped on the south side of the road, to make a wider shoulder than had formerly been there. He was laying partly on the gravel and partly on the paved part of the highway, and directly north of him was the car we presumed at that time had caused the accident.
'Q. Did you examine the car? A. Yes.
'Q. What did you observe in respect to the car? A. I found on the left hand side of the car a headlight broken. I found a dent between the fender and the grill, and I found the radio aerial broken off.
'Q. Did you also notice this body you spoke of? A. Yes, sir.
'Q. Did you examine the body? A. I did.
'Did you recognize it? A. Yes, sir.
'Q. Who, again, was it? A. It was Cedric Lemons.
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'Q. (Mr. Olsen) Will you tell the jury what you observed in respect to this body? A. I found the body laying on the road, with his head pointing down the road, and feet back toward Mount Vernon; his head badly mangled; his forehead practically torn off; his face and nose practically torn off; one arm badly crushed, and both legs broken, compound fractures in both legs. I found his clothes, one shoe was gone. He had a dark suit on, and he had a white plaid shirt on. His coat--his sleeves were pulled 'way up. The shirt was completely unbuttoned. The man was on his back. His shirt was back underneath him pretty well. He had on a white undershirt. There was lots of blood on his clothes. That is about all, I guess, I can tell.
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'Q. Aside from the body and the car portrayed in those pictures did you make any other observations in the area that evening, Sheriff? A. Yes, I did.
'Q. Tell the jury what you saw? A. I observed the skid tracks left by the automobile. I found the little girl that was involved in the accident--Miss Holland--in the automobile. I sent her back to my house, with my daughter in my own car. That is about all that night.
'Q. You say you observed some skid tracks on the road. Were you able, from your examination and observation, to conclude what automobile had been responsible for those tracks? A. Yes, we were, because the automobile had stopped, and then backed up. The automobile was off the skid tracks at the time I arrived there; but the little girl told me that was her tracks.
'Q. When you say 'Little Girl'? A. I mean Miss Holland.
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