Mitchell v. Bruening
| Decision Date | 05 April 1932 |
| Parties | MITCHELL v. BRUENING. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.
Action by W. N. Mitchell, administrator of the estate of Alice P Mitchell, deceased, against Blanche Bruening. From judgment for plaintiff, defendant appeals.
Affirmed.
This action was instituted to recover damages for the death of Alice P. Mitchell, wife of plaintiff, in an automobile accident which occurred while she was a guest occupying the rear seat in an automobile owned and operated by the defendant. The accident and resultant death took place in the state of Washington, and the plaintiff, as administrator of the estate of decedent, brought the action under the Washington statute, which provides, in part:
Section 183, R. C. S. "When the death of a person is caused by the wrongful act, neglect, or default of another his personal representative may maintain an action for damages against the person causing the death; and although the death shall have been caused under such circumstances as amount, in law, to a felony."
Section 183-1, R. C. S. "Every such action shall be for the benefit of the wife, husband, child or children of the person whose death shall have been so caused. ***"
The complaint alleged that decedent left surviving her a husband the plaintiff herein, and two minor children, for whose benefit this action is brought.
Plaintiff alleged that on or about July 5, 1930, he and his then wife at the invitation of defendant, were riding in a certain motor vehicle owned and operated by and in the exclusive control of defendant, upon the Aeriel-Woodland public highway, a highway of the state of Washington, and that when the defendant's car, which was proceeding in a general southeasterly direction, had reached a point about one mile from Aeriel, it plunged over and down the embankment to the left of the highway, resulting in the death of plaintiff's wife as aforesaid. He alleged that the injuries which resulted in the death of his wife were directly and proximately caused by the carelessness recklessness, and gross negligence of the defendant, in that defendant operated her motor vehicle at the time and place of the accident and prior thereto at a high, dangerous, unlawful, reckless, and excessive rate of speed under the existing circumstances, to wit, between fifty and sixty miles per hour, and in excess of fifteen miles per hour and between fifty and sixty miles per hour, at a left-hand curve where the view ahead was obstructed within a distance of two hundred feet; in that the defendant failed to keep her motor vehicle under control, and failed to operate same at a speed that was reasonable and proper under the existing conditions wherein there was a down grade, narrow highway with crushed rock surface and shoulder gravel, drain ditch and overhanging rock ledges to the right, and a precipitous drop at the left, and curves and obstructions to the view ahead. He further alleged that, on the date of the accident and immediately prior thereto, his interstate was a healthy able-bodied woman of the age of 42 years, able to perform her household duties and care for her family and to aid in building up her material estate, and was so doing at the time of the accident. He further alleged that at the time of the accident there was in full force and effect in the state of Washington a certain statute governing and regulating the manner and method in which motor vehicles should be operated when driven on the public highways of Washington; said statute being known as sections 2, 3, 41, and 45, c. 309, p. 767, Laws of Washington, 1927, and reading, in part, as follows:
Plaintiff demanded judgment in the sum of $26,100, with costs and disbursements.
The defendant by her answer denied all negligence. For a further and separate answer and defense, she alleged facts showing that the plaintiff and his then wife, Alice P. Mitchell, on learning that the defendant contemplated driving from Portland, Or., to Aeriel, Wash., and return, on or about July 5, 1930, suggested that they accompany defendant on the trip as her guests, that neither the plaintiff nor the decedent paid any fare or other consideration to the defendant for the ride, and that they were guests of defendant on the trip. Defendant averred that, from the time she left Aeriel until she reached the place where the accident happened, she operated her car in a careful manner and at a lawful rate of speed, to wit, not in excess of fifteen miles per hour, and that, at the point where the accident happened, her automobile, for some unknown reason, but without negligence on her part, left the road and was precipitated down a steep hillside, resulting in the death of the plaintiff's wife. She demanded that plaintiff take nothing and that defendant recover her costs and disbursements in the action.
The plaintiff replied, and the case was put at issue. As a result of the trial the plaintiff was awarded general damages in the sum of $4,500 and special damages in the sum of $1,100. From the judgment entered on the verdict rendered, defendant appeals.
James L. Conley, of Portland (A. G. Fletcher and Calvin N. Souther, both of Portland, on the brief), for appellant.
Nicholas Jaureguy, of Portland (Jaureguy & Tooze and Lon Bass, all of Portland, on the brief), for respondent.
The defendant assigns error of the court in denying her motions for a nonsuit and directed verdict predicated upon the ground that plaintiff's evidence showed contributory negligence on the part of plaintiff's decedent which contributed to and was the proximate cause of the accident.
The only living witnesses to the accident are the plaintiff and the defendant.
The record discloses that the road over which the defendant was driving her car at the time of the accident was rough, in that more or less gravel had been used in its construction, and that the shoulders were loose gravel; that on the right of the roadway in the immediate vicinity of the accident were overhanging rock ledges and a drain ditch, and, on the left, a precipitous drop; that there were likewise sharp curves and obstructions to the view ahead, and at the point of the accident there was a considerable down grade on a curve.
The plaintiff testified that from the town of Aeriel to the place of the accident, which was a little less than a mile, the defendant had driven forty to fifty miles per hour, and that, when they had reached a point about 300 feet from the place where the accident happened, the car swerved and plaintiff's decedent made the statement that they were "going altogether too fast"; that the plaintiff, who was seated in the front seat beside the defendant, told her that "Your car runs like a scared hound." As to what then took place, he further testified:
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