Appeal
from Circuit Court, Multnoman County; Robert G. Morrow
Judge.
Action
by Fred Lidfors, by Magnus Lidfors, his guardian ad litem
against H. A. Pflaum, doing business as the Fulton Wood
Company, and another. Judgment for plaintiff against the
named defendant, and he appeals. Affirmed.
See
also, 205 P. 277.
This is
an action to recover for an alleged injury sustained by
plaintiff by reason of an automobile accident upon the
streets of the city of Portland. The complaint begins by
alleging a certain ordinance of the city of Portland entitled
Ordinance No. 32923, as amended by Ordinance No. 35875, the
provisions of which ordinance, so far as they pertain to this
case, are as follows:
"Vehicles
proceeding in opposite directions shall pass to the right
giving half of the road to each.
"It
shall be unlawful for any person, whether or not such
person is driving at a lawful rate of speed, to drive or
operate any vehicle or street car in a careless or
negligent manner.
"The
driver of any vehicle about to turn, from either a
standstill, or while in motion, shall give a timely
plainly visible, and unmistakable signal indicating the
direction of the turn."
The
complaint then continues as follows:
"That
on or about July 14, 1919, the plaintiff was riding a bicycle
and was riding said bicycle on Macadam street in a northerly
direction, and was riding said bicycle on the right side of
said Macadam street, close to the curb, proceeding at a
lawful rate of speed.
"That
at the same time the plaintiff was riding said bicycle as
aforesaid, an auto truck belonging to the defendant H. A.
Pflaum was being driven by an employé of said defendant south
on Macadam street, which truck was being followed by
defendant C. H. McClain in his automobile, also traveling
south on Macadam street.
"That
when the auto truck of the defendant Pflaum had about reached
the entrance to Jones Mill on Macadam street, the driver of
said truck recklessly, carelessly and negligently, and
without due regard to the rights of others, who might be
lawfully using said streets, and of this plaintiff in
particular, and in violation of the laws of the state of
Oregon regarding the use and operation of automobiles and
vehicles on streets and public highways, and without giving
any signal or warning of his intention to turn or change the
course of direction of said auto truck, suddenly swerved and
turned to the left, and the defendant McClain, recklessly,
carelessly and negligently, and in violation of the laws of
the state of Oregon regarding the use and operation of
vehicles on streets and public highways, did recklessly,
negligently, carelessly and unlawfully drive his machine on
the left-hand side, thereby running into and colliding with
plaintiff herein, throwing him forcibly from his bicycle into
the street.
"That
at the time of said accident plaintiff was 15 years of age in
good, sound bodily health and had an expectancy of life of
45.50 years.
"That
as the result of the carelessness, negligence and unlawful
operation of said auto truck of the defendant Pflaum, and the
carelessness, negligence and unlawful operation of said
automobile by defendant McClain, plaintiff sustained severe
injuries, whereby his right knee was badly injured, his head
injured causing plaintiff to suffer from concussion of the
brain, his arms were injured because the automobile of
defendant McClain ran over them, and that the proximate cause
of these injuries was such negligence and carelessness of
these defendants."
The
defendant Pflaum answered with a substantial denial of every
allegation of the complaint, except that during all of the
times mentioned he was doing business under the name of the
Fulton Wood Company, and that plaintiff met with an accident
at the date mentioned in the complaint; and alleging that
said accident occurred without fault or negligence whatsoever
on the part of the defendant.
The
defendant McClain answered denying substantially all the
allegations of the complaint excepting the fact that the
plaintiff was injured, admitting the accident, and alleging
that Pflaum was doing business under the name of Fulton Wood
Company, alleging that Macadam street, where the accident
occurred, was a public highway or street in the city of
Portland, and setting up the same ordinance that is set up in
the complaint and alleging that plaintiff, at the time of the
accident, was riding a bicycle on the right-hand side of
Macadam street, which is on the east side of said street, and
was going in a northerly direction close to the curb
proceeding at a lawful rate of speed.
The
answer continues as follows:
"That
on or about July 14, 1919, the plaintiff was riding a
bicycle, and was riding said bicycle on Macadam street in a
northerly direction, and was riding said bicycle on the right
side of Macadam street, close to the curb, proceeding at a
lawful rate of speed.
"That
about the same time that the plaintiff was riding his bicycle
as aforesaid, the auto truck belonging to the defendant
Pflaum, was being driven south on Macadam street by an
employé of said defendant Pflaum, and traveling near the
center of Macadam street, which truck was being followed by
this defendant in his automobile, also traveling south on
Macadam street.
"That
this defendant in his automobile traveling at a lawful rate
of speed, and with due regard to the rights of others, who
might be using said streets, and in compliance with all the
ordinances of the city of Portland relating to the use of its
streets by motor vehicles, overtook the truck of the
defendant Pflaum, and signaled by sounding his horn that this
defendant intended to pass the truck of the defendant Pflaum.
This defendant started to pass the truck of the defendant
Pflaum on his left as is provided by the ordinance of the
city of Portland, and the front wheels of the automobile of
this defendant were overlapping the rear wheels of the auto
truck of the defendant Pflaum, and on the left of said auto
truck of said defendant, when the driver of said truck
belonging to the defendant Pflaum recklessly, carelessly and
negligently, and without due regard to the rights of others
who might be lawfully using said streets, and of this
defendant in particular, and in violation of the laws of the
state of Oregon, regarding the use and operation of
automobiles and vehicles on streets and public highways, and
without giving any warning or signal of his intention to turn
or change the course of direction of said auto truck, and in
violation of the city ordinance above pleaded, and of the
laws of the state of Oregon, suddenly swerved and turned to
the left, thereby causing this defendant, in an endeavor to
prevent a collision with the auto truck of the defendant,
Pflaum, to swerve sharply to the left and swing to the
left-hand side of the street, and in doing so this defendant
ran into and collided with the plaintiff herein who had just
passed in front of the truck of the defendant Pflaum.
"That
this defendant at the time of said accident did not, and
could not, see the danger and peril of the plaintiff in time
to avoid a collision with said plaintiff by the diligent use
of the means in hand; that this defendant at said time was
keeping a sharp lookout ahead, and was operating his said
automobile in a careful, lawful and proper manner, and was
exercising every care and precaution necessary to the lawful
and careful operation of his said automobile, and that due to
the carelessness and negligence of the defendant Pflaum, as
hereinabove alleged, in swerving and turning his said auto
truck to the left, as above alleged, this defendant was
placed in a sudden emergency, and that this defendant, in
endeavoring to escape from the danger and peril he was placed
by the said negligence and carelessness of the defendant
Pflaum, as above alleged, collided with the plaintiff, and
that this defendant upon discovering the danger and peril of
the plaintiff attempted to stop his automobile and to avoid a
collision with plaintiff, and used every means in his power
to avoid colliding with plaintiff, and that due to the sudden
emergency in which this defendant was placed by the
carelessness and negligence of said defendant Pflaum, as
above alleged, this defendant was unable by the diligent
exercise of the means at hand to prevent a collision with
said plaintiff. That the carelessness and negligence of the
said defendant Pflaum, as above alleged, was the proximate
cause of said accident, and that this defendant was not
negligent in any respect whatsoever, and that this defendant
after discovering plaintiff's peril and danger did all in
his power in the sudden emergency caused by the carelessness
and negligence of the said defendant Pflaum, as above
alleged, to avoid by the diligent use of the means in hand
colliding with and injuring plaintiff, and that this
defendant under the doctrine of last clear chance is not
liable for said accident."
The
defendant Pflaum answered denying generally all the material
allegations of McClain's answer. At the trial, the jury
returned a verdict in favor of the plaintiff and against
Pflaum for the sum of $1,500. Whereupon, the court gave
judgment upon such verdict, from which judgment the defendant
Pflaum appealed not making his codefendant McClain a party to
such appeal. There was no demurrer to plaintiff's
complaint, and at the trial the defendant Pflaum for the
first time objected to any testimony as against him for the
reason that the complaint did not state facts sufficient to
constitute a cause of action, which objection was overruled,
and the parties proceeded to trial.
A. G
Barry, of Portland (Griffith, Leiter &...
