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

198 P. 234

100 Or. 482

ROOK v. SCHULTZ ET AL.

Supreme Court of Oregon

May 24, 1921

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:

"That said defendants carelessly and negligently permitted and allowed said Antone Rook to ride on the running board of its said motor truck.

"That said defendants carelessly and negligently operated the said motor truck at a high and dangerous rate of speed while said Antone Rook was riding on said running board.

"That said defendants carelessly and negligently, on said 13th day of July, 1918, turned at the intersection of Michigan and Shaver streets, at a high and dangerous rate of speed while said Antone Rook was riding on said running board thereby throwing him therefrom.

"That said defendants carelessly and negligently failed to warn and advise said Antone Rook of their intention to suddenly and unexpectedly turn at said intersection of Michigan and Shaver streets."

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:

"If you find the evidence in this case that the defendants were careless and negligent, in that they permitted plaintiff to ride on the running board of their motor truck, or they operated their motor truck at a high and dangerous rate of speed, and that as a direct and proximate result of such negligence, without negligence on the part of plaintiff, plaintiff was injured, in that event your verdict should be for the plaintiff, if the accident was not a pure accident and plaintiff was not guilty of contributory negligence. Of course that takes into consideration the fact that they knew he was riding on the truck."

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 w...