Personius v. Asbury Transp. Co. of Oregon, Inc.
| Decision Date | 14 January 1936 |
| Citation | 53 P.2d 1065,152 Or. 286 |
| Parties | PERSONIUS v. ASBURY TRANSP. CO. OF OREGON, Inc. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.
Action by Henry C. Personius against the Asbury Transportation Company of Oregon, Incorporated. Judgment for plaintiff, and defendant appeals.
Affirmed.
E. L. McDougal and Lawrence Lister, both of Portland, for appellant.
W. H Anderson, of Pocatello, Idaho, and John A. Lee, of Portland (Peterson, Anderson, Bowen & Anderson, of Pocatello, Idaho and John A. Lee, of Portland, on the brief), for respondent.
The defendant has appealed from a judgment against it awarding damages to plaintiff for personal injuries suffered by him in a collision between the passenger bus which he was driving and a truck and trailer owned by the defendant company. The accident occurred about 4:30 o'clock in the morning of March 1, 1933, at a point some five or six miles east of Baker on the Old Oregon Trail Highway. This highway is hard-surfaced, 18 feet wide, and follows a meandering course, with many curves and grades.
The truck and trailer of the defendant company, each weighing about 22,000 pounds and carrying a capacity load of gasoline were proceeding in an easterly direction. The truck was about 45 feet long, and the trailer with its coupling, about 26 feet.
A storm was in progress and the rain, as it fell, formed an icy slippery surface on the highway. This condition was first noticed by Carter, driver of the defendant's truck, as he left Baker. A short distance before reaching the place where the accident occurred, Carter, who was a driver of many years' experience, had stopped and put chains on the two rear wheels of the truck. As he start-to go up the next grade he found that it was impossible to proceed, due to the fact that the drive wheels would not hold on the ice-coated pavement. The rear end of the truck swung around in the highway to the left, in a northerly direction, to the shoulder of the road, so that the truck faced southeast at an angle of about forty-five degrees to the course of the highway. The front end of the trailer followed the rear end of the truck, so that truck and trailer formed a triangle, having the south side of the highway as its base.
At this point there was a fill on the highway with downward sloping banks from the shoulders of the road, the southerly side protected by a fence or guard rail. The truck was stopped with its radiator within about four feet of the rail at its east end.
Carter attempted to bring the truck back straight and upon his side of the highway and covered the surface of the road at that point with gravel, in order to obtain traction for the rear wheels. When he found that he could not move the truck he ran up to the top of the hill to the east, to ascertain whether he could "see anybody or a car approaching." As he saw no one, he returned to the truck, and while sitting in its cab first saw the lights of the approaching bus which was being driven by the plaintiff. The truck had been stalled approximately forty-five minutes when Carter saw the lights of the bus.
Personius, the plaintiff, was an experienced driver, thirty-eight years of age. He had been engaged in that occupation since 1920, and in the employ of Union Pacific company since September, 1928. He was driving one of that company's twenty-six passenger busses weighing about 17,000 pounds exclusive of passengers, baggage, and gasoline, had left Boise, Idaho, at 11:45 p. m. on February 28, and was due at Baker at 4:30 in the morning of March 1. At the time of the accident his bus was carrying eight adult passengers and two children. He encountered the rainstorm at twenty-four or twenty-five miles east of the scene of the accident, but no ice until within eleven or twelve miles of that point. He had chains, but did not use them.
According to his testimony, he first saw the truck when within about 140 or 150 feet east of it, as he rounded the last curve, while going at a rate of about twenty-five miles an hour. There were no lights on either the truck or the trailer, he testified, and no flares lighted in the highway, no flag or other warning signal. The truck and trailer were battleship gray in color, not easily visible on a dark morning.
Plaintiff's own account of the collision, on direct examination, was as follows:
He stated that he was traveling fifteen to eighteen miles an hour when the collision occurred. On cross-examination the plaintiff gave the following testimony:
Just before the truck was hit, Carter jumped from its cab to safety. By force of the impact the front end of the truck was demolished. The trailer broke loose, rolled down the hill and crashed through the guard rail and into the ditch. Personius, the bus driver, was violently thrown against his steering wheel and the side of the bus, whereby he sustained the injuries which are the basis of this action.
The complaint charges the defendant with negligence in the following respects: (1) "In parking and placing said oil tank truck and trailer across the highway and thereby blocking traffic thereon, and in extinguishing the lights on said oil tank truck and trailer;" (2) "in parking and placing said oil tank truck and trailer across said highway without any light or lights thereon to warn other travelers on said highway of the blocking of said highway with said oil tank truck and trailer;" and (3) "in failing to put out a flag to warn approaching traffic and particularly the plaintiff, or to employ or use some other adequate warning of the presence of said oil tank truck and trailer on said highway and impart the information that defendant *** had blocked and closed up said highway."
The acts of negligence charged against it by the plaintiff were denied by the defendant, and in its first affirmative defense it charges that the plaintiff was "guilty of recklessness, carelessness and negligence in the following particulars:" (1) "In failing to observe the highway and the traffic thereon and particularly the truck and trailer of the defendant herein;" (2) "in operating plaintiff's bus at a high and dangerous rate of speed under the circumstances;" and (3) "in failing to have said bus under control and to have chains on its wheels so as to stop the said truck and prevent a collision with the disabled truck and trailer of the defendant herein."
As a second affirmative defense the defendant alleges that plaintiff was, at the time of the mishap, and for some time prior thereto had been, an employee and bus operator of the Union Pacific Stages, Inc. (mentioned and to be mentioned elsewhere in this opinion as Union Pacific company), and that the contract of employment was entered into in the state of Idaho; that the Union Pacific company "was operating under the benefits of what is commonly known as the workmen's compensation law of the state of Idaho," which law was administered by the Industrial Accident Board of that state; that at the time of plaintiff's employment by the Union Pacific company it was agreed by and between said employer and said employee "that damages for injuries, if any, received by the plaintiff in the course of his employment outside the state of Idaho should be subject to the remedies provided by the industrial accident board and the Idaho laws in relation thereto, covering accidental injuries"; and that it was further agreed that the plaintiff herein and the Union Pacific company "should be governed by the provisions of said compensation law and said industrial accident board."
This affirmative answer also alleges that the plaintiff, while in the employ of Union Pacific company, in the vicinity of...
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