Rook v. Schultz
Decision Date | 24 May 1921 |
Citation | 100 Or. 482,198 P. 234 |
Parties | ROOK v. SCHULTZ ET AL. |
Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.
Action by Antone Rook, a minor, by Emmet Drake, his guardian ad litem, against J. E. Schultz and W. A. Ullman, partners doing business under the firm name of Willamette Dairy Company. From a judgment for plaintiff, defendants appeal. Affirmed.
It is alleged in the complaint and admitted by the answer that the defendants are partners engaged in maintaining and operating a dairy plant under an assumed trade-name, using in their business a number of vehicles propelled by gasoline; that they hire help for the purpose of operating them; and that on July 13, 1918, the plaintiff was riding on one of those vehicles and assisting the driver in distributing milk. It is further charged in the complaint, but denied by the answer that on the date mentioned, while the plaintiff was riding on the motor truck, he was thrown therefrom, receiving certain injuries which he described, and that the defendant knew he was so riding and assisting the driver thereon. The charges of negligence imputed to the defendants are as follows:
The injuries mentioned are denied by the answer. That pleading affirmatively states that on July 13, 1918, the plaintiff who is of the age of about 14 years, was riding on one of the defendants' motor vehicles without their knowledge or consent, and as a volunteer was assisting the driver in delivering milk, without any authority emanating from the defendants. Contributory negligence is imputed to the plaintiff, in that he failed to hold on to any part of the vehicle, released his hold upon it, which he had theretofore maintained, and carelessly and negligently attempted to alight therefrom while it was moving, that being the cause of his hurt. This, in turn, is traversed by the reply.
The errors assigned are predicated on the refusal of the court to grant a motion for nonsuit at the close of the plaintiff's case, refusal to direct a verdict in favor of the defendants at the close of all the evidence, and upon giving the following instruction:
J. C. Veazie, of Portland (Veazie, McCourt & Veazie, of Portland, on the brief), for appellants.
W.
E. Farrell, of Portland (Davis & Farrell, of Portland, on the brief), for respondent.
BURNETT, C.J. (after stating the facts as above).
For the purposes of this case we take the defendants at their...
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