Prestbye v. Kliphardt
| Decision Date | 16 December 1924 |
| Citation | 231 P. 187,113 Or. 59 |
| Parties | PRESTBYE v. KLIPHARDT ET AL. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Umatilla County; Harry H. Belt, Judge.
Action by E. C. Prestbye, administrator of Gerhardt Wiebe, against J. W. Kliphardt and others. From a judgment for defendants plaintiff appeals. Affirmed.
This is an action for negligence arising from the death of Gerhardt Wiebe in an automobile accident in Walla Walla county, Wash. The cause was tried to the court and a jury, and a verdict rendered in favor of defendants. From a judgment thereon plaintiff appeals.
The facts of the case, as far as it is necessary to here state are as follows:
On Sunday, March 4, 1923, at about 6 o'clock p. m. Gerhardt Wiebe was riding north toward the city of Walla Walla, Wash in a Ford automobile owned by Jacob Lautsch, on the paved highway known as the Oregon-Washington highway. At a point on the highway about 100 yards south of where the highway crosses the Walla Walla river, the automobile became disabled by reason of a flattened tire on the left rear wheel. The automobile was driven to the extreme right and easterly side of the paved portion of the highway, so that the left wheels of the automobile were about 8 inches upon, and the left side of the automobile was about 15 inches over the pavement, and the right wheels were off the pavement, and, as alleged by plaintiff, within a few inches of the ditch about 2 feet deep and 3 feet wide. Gerhardt Wiebe got out of the automobile in which he was riding to assist in repairing the flattened tube, and while on his knees and immediately behind, and close to the wheel on which he was replacing the tire, he was run over with such force and violence by the defendants' Dodge automobile, that he was instantly killed.
Plaintiff alleges that at the time of accident both the rear and the front lights on the car, on which Wiebe was replacing the tire, were burning, and the view of the automobile was unobstructed from approaching automobiles, and that the defendants negligently drove the car at an excessive and dangerous rate of speed against deceased with great force and violence.
The defendants denied any negligence upon their part and alleged contributory negligence on the part of decedent in repairing the tire in the nighttime upon the paved public highway without any light on or about the car; that the decedent knew of the defendants' approaching car and failed to heed the danger; that he permitted the car to be stopped on the public highway of Washington without any lights on the automobile when he could have easily and within little or no distance have removed the automobile from the highway for the repairs. The defendant further pleaded the statute of the state of Washington (Laws 1921, p. 276), as follows:
The defendants also pleaded other sections of the statutes of Washington. It appears the defendants were residents of Umatilla county, Or. The errors assigned relate to the ruling of the court upon testimony offered by plaintiff in rebuttal.
E. C. Prestbye, of Athena (C. M. Rader, of Walla Walla, Wash., and Homer I. Watts, of Athena, on the brief), for appellant.
W. G. Coleman, of Walla Walla, Wash., and Stephen A. Lowell, of Pendleton, for respondents.
BEAN, J. (after stating the facts as above).
At the close of defendants' case the plaintiff called as the first witness in rebuttal, B. L. Archer. After a few preliminary questions had been asked of the witness Archer, counsel for defendants objected "to any testimony on this line on the ground it is not proper rebuttal." Whereupon one of counsel for plaintiff stated:
Counsel for defendants contended that all those matters should have been put in upon the presentation of the case in chief. The trial court ruled as follows:
Counsel for plaintiff contended that the proof of the case in chief in regard to the location of the car, barely on the highway, and the reason given for not removing it entirely from the highway, was a mere incident in connection with showing the location of the car at the time. The court then ruled as follows:
In order for a proper understanding of the status of the case at the time the ruling was made, it is necessary to notice a portion of the testimony in the case introduced prior to the ruling.
It appears from the record that on the night of the accident, four men, Jacob Lautsch, Adam Gaub, Sam Gaub and Gerhardt Wiebe, the deceased, were journeying over the highway at the time mentioned. Two of these parties were witnesses for the plaintiff upon the trial. Jacob Lautsch, as such witness upon direct examination, upon the trial of plaintiff's case in chief, after describing the details of the first part of the journey, and the stopping of the car for the purpose of repairs, testified in part as follows:
There was also a lengthy cross-examination of this witness as to the attempt made at the time to get the car entirely off the pavement. This witness then stated in substance, that the shoulder of the highway next to the pavement was about 3 or 4 feet wide, that there was not room enough to get the car off the pavement, and also that it was too wet; that there was water in the ditch which came to the dirt shoulder; that the lights on the Ford car were burning all the time.
Mr Adam M. Gaub, another eyewitness to the accident, testified for plaintiff in his case in chief to the effect that Mr. Lautsch, the driver of the car at the time, turned the car off the road as far as he could get it without going into the ditch; that there was water in the ditch, and it was not practical to go any farther, and that the lights of the car were burning; that the engine was running and that the lights were visible from the front and the rear; that he went around to the rear of the Ford car and saw that the rear light was burning. This witness was also cross-examined as to the lights of the car and the distance from the pavement to the ditch. The witness testified that the tires on the left side of the Ford car were 8 inches on the pavement and the right wheels were about the same distance from the water in the ditch; that the distance from the paved surface of the highway to the shoulder of the ditch was around 4 feet, being slightly sloping for about 2 feet next to the ditch.
In answering the testimony of the plaintiff thus introduced, J. W. Kliphardt, one of defendants, as a witness, testified in part as follows:
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