Ross v. Robinson

• Decision Date: 28 April 1942
• Citation: 124 P.2d 918,169 Or. 293
• Parties: ROSS v. ROBINSON.
• Court: Oregon Supreme Court

124 P.2d 918

169 Or. 293

ROSS v. ROBINSON.

Supreme Court of Oregon

April 28, 1942

Appeal from Circuit Court, Josephine County; H. D. Norton, Judge.

Action by Frank P. Ross, administrator of the estate of Lyna M Ross, deceased, against Everett E. Robinson to recover damages for the death of Lyna M. Ross. From a judgment for plaintiff, defendant appeals.

Affirmed.

Don R. Newbury, of Medford, for appellant.

W. T Miller, of Grants Pass (Orval J. Millard, of Grants Pass, on the brief), for respondent.

Before KELLY, C.J., and BAILEY, LUSK, RAND, ROSSMAN, and BRAND, JJ.

BAILEY Justice.

The defendant, Everett E. Robinson, has appealed from a judgment in favor of the plaintiff, Frank P. Ross, administrator of the estate of Lyna M. Ross, deceased, in this action brought by Ross to recover damages for the benefit of the decedent's estate. Mrs. Ross died December 14, 1939, from injuries received by her December 12, 1939, in a collision between her husband's automobile, in which she was riding as a passenger, and an automobile owned and driven by the defendant.

The accident occurred on what is commonly known as the Redwood highway, approximately two miles west of the city of Grants Pass. Frank P. Ross, accompanied by his wife Lyna M. Ross, in the front seat of his car, a 1935 Chevrolet sedan, was driving in a westerly direction. According to his testimony, he was driving at a rate of thirty to thirty-five miles an hour, when he overtook C. C. Pritchett, driving a 1926 Studebaker pick-up car in the same direction. Pritchett testified that his car was proceeding at about twenty-five to thirty miles an hour, while Ross's testimony was that the Studebaker was traveling at a speed of twenty to twenty-five miles an hour.

Ross testified that when he was within thirty or forty feet of the Studebaker he looked ahead in the highway and noticed a car approaching at a distance he estimated as about three hundred yards. He turned to the left side of the highway and undertook to pass the Studebaker, and when about opposite the Studebaker his own car collided with the defendant's automobile, a 1939 Buick coupe, which was the car he had seen approaching. The impact occurred at the left edge of the highway, almost off the pavement and on the shoulder of the road. The right front end of the defendant's car struck the right side of the Chevrolet, near the front.

The accident occurred at approximately 4:50 o'clock in the afternoon of December 12. Headlights were not required for visibility and none of the cars had any burning. The roadway is straight and practically level for a distance of half a mile or more in both directions from the place of the collision. The paved part of the highway is nineteen feet in width, and the shoulders along the sides are between eight and nine feet wide.

When Pritchett saw that a collision appeared inevitable, he drove his car far to the right, on the north side of the highway, to leave room for the other two cars to pass.

The acts of negligence charged by the plaintiff against the defendant are the following:

"(a) In wholly failing to keep a lookout for other automobiles then and there on the highway, and

"(b) Traveling at a highly dangerous and excessive rate of speed considering the traffic and surface, condition and width of the highway, and the position of other automobiles on the highway, including the automobile so owned and operated by the plaintiff, Frank P. Ross."

Two of the assignments of error are based on the failure of the court (1) to grant the defendant's motion for an involuntary nonsuit and (2) to grant the defendant's motion for a directed verdict in his favor. The motions were in writing and submitted without argument. The motion for a directed verdict, worded similarly to that for an involuntary nonsuit, was "on the ground and for the reason that there has been no evidence received sufficient to establish or prove the allegations of the complaint and the issues of the case."

One of the reasons urged by the defendant in his brief, in support of the above mentioned motions, is that there was no evidence that he "was violating the basic rule of the Oregon statute as to speed". The plaintiff, in order to prove that the defendant was driving at an excessive rate of speed, introduced evidence as to two skid marks, presently to be discussed, which, he asserts, were made by the defendant's Buick. The defendant, on the other hand, argues that there is no evidence that the longer of the two marks was made by his car. He contends, in fact, that the evidence is conclusive that that skid mark was not caused by his car at all. We shall first refer to the testimony of the plaintiff's witnesses concerning the two skid marks.

Jay Williams, a state police officer stationed at Grants Pass, arrived at the scene of the accident at 5:10 P. M. After rendering assistance to those injured, he looked around for skid marks. He found one at the place of the accident which extended about thirty-nine feet westerly, in the direction from which the defendant's car had come, and another mark, about one hundred thirty-six feet long, the east end of which was one hundred and one feet west of the first skid mark. By the time the officer observed the skid marks it was becoming dark and he had to use a flashlight to see them. That evening, he designated on the pavement the location of the marks; and the next afternoon, about 2:30 o'clock, accompanied by Corporal Lloyd Harrell, another state police officer, he went to the place of the accident, measured the length of the skid marks and made a close observation of them. Concerning the marks he gave the following testimony:

"Q. Now, you say you have had a year or two experience as a traffic officer. Now, what would you say as to the appearance of those two sets of skid marks with reference to time-that is, with reference to the time when they might have been made? A. From the freshness of the skid marks and the evidence on the pavement, they were made at the same time.

"Q. Did you examine the skid marks closely-minutely? A. Yes, sir.

"Q. What can you say, if anything, with reference to any dust or anything of that kind having accumulated on them? A. There was no dust accumulated on them; they were fresh next day. Any one could see they were the burnt marks of the skid on the pavement a skid will make *** a fresh skid as plainly a few hours afterwards as at the time it was made."

On cross-examination, his testimony was as follows:

"Q. You spoke about freshness of the tire mark. What is there about the freshness of a tire mark that you can say whether it has been there one day or three days or seven days? A. You will find on observation of the skid a certain amount of rubber fiber which has been burned off on the highway that makes a fine dust; in a few days it isn't in evidence.

"Q. And you saw this fine dust there the next afternoon, did you? A. I don't say I saw fine dust there that afternoon. I said I checked the skid marks that night.

"Q. You saw that with your flashlight, did you? A. That is right."

Corporal Harrell, who assisted Officer Williams in making the measurements, had been a member of the Oregon state police force four years. He stated that he had made a study of automobile traffic conditions. In reference to the skid marks he thus testified:

"Q. Now, the skid marks in front of the Smith residence [where the accident occurred], what did they indicate? A. There was a skid mark leading from the mail box by the residence west on the pavement for a distance of thirty-nine feet, and one hundred and one feet west of that point was another set of skid marks on the south line of the highway, and we measured them and found them to be one hundred and thirty-six.

*****

"Q. Now, at the time you examined those skid marks what could you say as to the appearance of the *** the relative appearances of the two sets of skid marks, that is, the thirty-nine foot skid marks and also the one hundred thirty-nine-one hundred thirty-six foot skid marks? A. The set of skid marks which were the one hundred thirty-six foot ones had traveled straight down the highway for a ways and then swung to the center stripe and then angled away from the center stripe, at which point they stopped. At the point where the thirty-nine foot marks began, they were at the same angle as the other marks; they were of the same intensity, same coloring, and were the same width.

"Q. They-did they appear to you to be the same? A. From that, I assumed them to be the same marks."

John Louis Frost, who lived in the immediate vicinity of the place where the accident occurred, testified that he saw the collision and at once went to the two cars, to render what assistance he could. About six o'clock that evening, in company with Officer Williams and at least one other individual, he examined both the skid marks to which attention has been called. With reference to what he did, he said: "*** I took my knife and followed and went along the tracks and in different places scraped up the fresh rubber that was on the pavement, left when he applied the brakes, extending all along the tracks leading down to a place where the skid marks were broken. Apparently the car released the brakes for a short distance and then after a little gap took hold again, and clear up to the Buick car you could scrape up a nice little bunch of fresh rubber, which I did, and called the officer's attention to it."

There was testimony to the effect that the two skid marks were caused by the left wheel or wheels of a car proceeding in an easterly direction, and that parallel with those marks and farther south on the pavement were other marks, less distinct, apparently caused by the right wheels of the same car....