McCartney v. Westbrook

• Decision Date: 01 April 1930
• Parties: MCCARTNEY v. WESTBROOK.
• Court: Oregon Supreme Court

286 P. 525

132 Or. 488

MCCARTNEY v. WESTBROOK.

Supreme Court of Oregon

April 1, 1930

Department 2.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Action by Florence McCartney, also known as Florence Adams, against B. R. Westbrook. Judgment for plaintiff, and defendant appeals.

Affirmed.

Frank C. Hesse, of Astoria (Norblad & Hesse, of Astoria on the brief), for appellant.

Loyal H. McCarthy, of Portland, for respondent.

BEAN J.

This is an action for damages, resulting from an automobile collision near the intersection of the Old Goble Road with the Lower Columbia River Highway at Goble, Columbia county, Or Defendant appeals from a judgment on the verdict, adverse to him.

At the town of Goble the Columbia River Highway, which at that point runs in a northerly and southerly direction, is intersected at right angles by a cross-road leading from the S. P. & S railroad station to some farming districts west of the highway. Commencing at about Rainier, Or., and up to a point several hundred feet south of Goble, the Columbia River Highway winds its way along some steep and abrupt bluffs, which at a point about 110 feet north of said intersection, between said Lower Columbia River Highway and Goble crossroad, recede towards the west in a semicircular fashion for a depth of about 75 feet, leaving immediately to the west of said highway a semicircular space of ground about 110 feet long, which was graded and graveled and which was used by the customers of a little store, known as the Fowler Store, which was located at the extreme curve of said semicircular tract.

On the day in question plaintiff, in company with two other girls had stopped her Ford coupé at the Fowler Store, being on their way to school at Rainier. When the girls left the store, they got into the car and thereupon plaintiff backed her coupé, which was facing the Fowler Store, in a semicircular fashion, so the car would face in a northerly direction, and then drove up near the steep abrupt bluff immediately to the north of the semicircular tract, stopped the car with the emergency brake at the edge of the pavement and looked both to her right and left, and, seeing no car coming in either direction, entered upon the pavement and started to cross the Columbia River Highway in order to get to the east half thereof for the purpose of driving north, on the said highway, to Rainier.

The testimony, on behalf of plaintiff, indicated that after entering upon the pavement, plaintiff's car, in crossing over towards the easterly side of the pavement for the purpose of going north, was at about the center of the pavement when plaintiff and the passengers in plaintiff's car noticed defendant's car coming at a high rate of speed in a southerly direction, and a little to defendant's left of the center of the road and about 75 or 100 feet away; that the occupants of plaintiff's car could see no effort on the part of defendant to stop his car; the plaintiff feeling that she was in danger, although on her own side of the road, attempted to get off the pavement toward the railroad track which was near; when she was hit by defendant's car and after her front wheels were off the edge of the pavement; that her car was struck with such force as to turn it around and throw it completely off the pavement; that "defendant's car was going like a streak." The defendant knew about this side road and passed frequently.

If the occupants of the Ford car could see defendant's car 75 or 100 feet away when they were near the center of the pavement, no good reason was disclosed to the jury why defendant could not then see plaintiff's car and have slowed down, or stopped and avoided the accident, if the speed of his car had not been too great. This was evidently what turned the scale, before the jury, against defendant.

It is defendant's contention that plaintiff was attempting to enter the Columbia River Highway from a private road or drive and emerged from a steep bluff which obstructed her view; that it was her duty, not only to stop her car, but if she was where her vision was obscured, it was her duty to get out of the car and ascertain if there was any approaching traffic from the north before she attempted to cross the highway.

This contention is the basis for defendant's motion for a directed verdict in his favor; and defendant also requested the court to instruct the jury, in effect, that the evidence, showing that neither plaintiff nor her companions got out of the car to ascertain whether or not it was safe for them to enter the highway, on account of traffic approaching from the north, and if they found a person of ordinary prudence would have either gotten out of the car and first ascertained whether there were any cars approaching from the north, or would have entered said highway at a point where they could have obtained a clear view of the highway to the north, but that plaintiff failed to do so; that plaintiff was guilty of contributory negligence and could not recover, and their verdict must be for the defendant.

The defendant was not entitled to an instruction or ruling that the plaintiff was at fault, for the reason that she did not get out of the car and examine the highway, as the jury would not be warranted in finding that such a proceeding would be necessary on the part of an ordinary prudent person. By the time plaintiff could get out of her car, examine the highway and return again to her car, the condition might be the same, as far as appearances are concerned, as it was when she first got out of the car. Such a step was not a practicable one to be taken by the driver of an automobile. There was no error of the court in refusing to direct a verdict in favor of defendant, or to give the requested instruction.

In Wilson v. Kuhn, 130 A. 468, 469, 3 N. J. Misc. R 1032, it appeared that the plaintiff had driven out upon a private highway where his view was obstructed...