Owens v. Holmes
| Decision Date | 30 September 1953 |
| Citation | 199 Or. 332,261 P.2d 383 |
| Parties | OWENS v. HOLMES. |
| Court | Oregon Supreme Court |
Gordon G. Carlson, Roseburg, argued the cause for appellant. On the brief were Yates, Murphy & Carlson, Roseburg.
Paul E. Geddes, Roseburg, argued the cause and filed a brief for respondent.
This is an action for damages for personal injuries suffered as the result of the alleged negligent operation of a motor vehicle, brought by Marthine Owens, a minor, by her guardian ad litem, as plaintiff, against Walter R. Holmes, as defendant. The case was tried to a jury. Upon conclusion of the trial defendant's motion for a directed verdict in his favor was sustained, and, based upon such directed verdict, judgment was entered for defendant. Plaintiff appeals.
The accident which gave rise to this action occurred a few miles south of Riddle, in Douglas county, Oregon, on a county road which runs in a general northerly and southerly direction, and which is commonly known as 'Shoestring road'. The travelled portion of the road is approximately 15 feet in width.
Defendant is a rural mail carrier operating out of the Riddle post office, and serves patrons living along the Shoestring road, among whom is L. Bert Owens, father of plaintiff. In the performance of his duties, defendant operated a 1949 Chevrolet halfton pickup motor vehicle, which was equipped with front and rear bumpers and running boards.
The Owens' house was situated on the easterly side of the road and somewhat above it. A private driveway leads from the road to the Owens' home. A mailbox fastened to a post approximately four feet high stood at the westerly edge of the travelled portion of the road and directly opposite the entrance to the private driveway. Grass, weeds, and berry vines grew along the fence on the westerly side, both north and south of the mailbox.
The accident occurred on August 23, 1951, at about the hour of 9 a. m., daylight saving time. It was a clear day; the roadway was dry. At the time of the mishap plaintiff was three years and three months of age, and was living with her parents. There were three other minor children in the family. Plaintiff's height was not established by the evidence, but there is nothing in the record to indicate that her height was other than normal. According to the father's testimony, the children met the mailman almost every day.
On the day and at the hour in question, defendant, while headed south, stopped at the Owens' mailbox and deposited mail. As he approached the mailbox and stopped, there were no other persons or vehicles on or near the road in the vicinity of the box. Both the right and left windows on his truck were open. He was close enough to the box to reach it through the right window. Having deposited the mail in the box, the defendant, without sounding his horn, started forward in low gear and had travelled but a few feet when he heard a scream. Whereupon, he immediately set his brakes and stopped. He found plaintiff lying on her back under the right running board about halfway between the right front and rear wheels of the vehicle.
Plaintiff's injuries consisted of a severe laceration, apparently from a blow on the head that severed the scalp from the skull about the level of the ear on the right side and two to three inches below the hairline. This laceration extended to the crown of the head and to the occipital area. There were no other lacerations on her face, nor were there any bruises or other injuries to any other part of her body, except that her lower gum had been pulled away from the teeth.
No one saw the accident, nor did anyone see the plaintiff at or near the scene of the accident prior to the time defendant found her in the road under his vehicle as above described. There is no direct evidence in the record indicating where plaintiff was struck or where she came from immediately prior to the injury. About 2 o'clock in the afternoon of the day of the accident, a police officer located a spot of blood on the westerly side of the road approximately 32 feet from the mailbox. This no doubt marked the spot where plaintiff was lying when she was found by defendant.
The evidence indicates that the child lay in the road where she was struck. There is no evidence tending to show that she was dragged through the dirt or gravel, and inasmuch as she was unconscious when she reached the hospital, she probably was rendered unconscious by the blow she received on her head.
In considering the question of whether the trial court erred in directing a verdict for defendant, we are, of course, required to view the evidence in the light most favorable to plaintiff. The foregoing statement of the essential facts is taken from plaintiff's brief filed in this court. It is assumed that plaintiff presented the matter in the light most favorable to her.
After reciting the foregoing facts (excepting the part devoted to plaintiff's injuries), plaintiff states in her brief:
'* * * Thus construing the evidence in plaintiff's favor, it appears that she was struck approximately 32 feet from the mailbox.'
From this fact, plaintiff contends that a reasonable inference may be drawn that she was in the road in front of defendant's vehicle during the time defendant was travelling the distance of approximately 32 feet, and, therefore, within view, and should have been seen by defendant and would have been seen by him, had be been keeping a proper lookout. Plaintiff says in her brief:
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Secanti v. Jones
...the burden of proof has not been sustained.' The foregoing rule has been applied by this court in numerous cases. In Owens v. Holmes, 199 Or. 332, 337, 261 P.2d 383, 386, this court '* * * It is not necessary to establish negligence by direct and positive evidence; it may be established by ......
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Lemons v. Holland
...it may be established by circumstantial evidence. However, the burden of proof is upon the plaintiff to prove his case. Owens v. Holmes, 199 Or. 332, 337, 261 P.2d 383; Quetschke v. Peterson and Zeller, 198 Or. 598, 606, 258 P.2d 128; Wintersteen v. Semler, 197 Or. 601, 620, 250 P.2d 420, 2......
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Williams v. Jordan
...unnoticed from a place of safety on the lawn to a position immediately under the right front end of the automobile. In Owens v. Holmes, 1953, 199 Or. 332, 261 P.2d 383, a mail carrier, although he knew that children had prior to this occasion been about and near this mail box, started off i......
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Larson v. Papst
...but also that such act or acts of negligence proximately caused the accident. Lemons v. Holland, Or., 284 P.2d 1041; Owens v. Holmes, 199 Or. 332, 337, 261 P.2d 383; Quetschke v. Peterson and Zeller, 198 Or. 598, 606, 258 P.2d 128; Wintersteen v. Semler, 197 Or. 601, 620, 250 P.2d 420, 255 ......