Russell v. Quigg, 62--40645--III
| Decision Date | 08 April 1970 |
| Docket Number | No. 62--40645--III,62--40645--III |
| Citation | 2 Wn.App. 294,467 P.2d 618 |
| Parties | Willadee RUSSELL, individually, and Willadee Russell, as executrix of the Estate of Frank Russell, Deceased, Respondent, v. Pernie Ada QUIGG, as administratrix of the Estate of Clayton Lloyd Cochran, Deceased, and Pernie Iola Cochran, widow of Clayton Lloyd Cochran, Deceased. |
| Court | Washington Court of Appeals |
Horton, Wilkins & Horton, Kennewick, Arthur R. Eggers, Walla Walla, for appellants.
Alfred McBee, Mt. Vernon, and W. V. Wells, Anacortes, for respondent.
This is an action for wrongful death arising out of an automobile collision that occurred in the state of Oregon. The parties are residents of the state of Washington. Defendant as administratrix of the estate of her late husband, Clayton Cochran, appeals from a judgment entered upon a jury verdict in favor of plaintiff, as executrix of the estate of her deceased husband, Frank Russell.
At the close of plaintiff's case the defendant challenged the sufficiency of the evidence, moved for a nonsuit, and upon its denial stood upon her motion. Plaintiff's evidence establishes that the two-car collision out of which this litigation arises occurred about 9:30 p.m. February 18, 1967 near Hermiston, Oregon, on Oregon Highway No. 30, near its intersection with an approach road leading from a sales barn where horses were sold at auction. At this point Highway 30 runs east and west and is known as a through highway. The approach road runs north and south. The sales barn is located several hundred feet north of Highway 30, and consists of several buildings and a large parking area. The approach road is 49 feet 10 inches wide and makes a T-intersection with Highway 30. It is a well-used road, as established by evidence that on the day of the accident a sale was conducted at the sales barn and was attended by 2 or 3 thousand people.
The Oregon Highway Department was in the process of adding 2 lanes to Highway 30 in the area involved, thus changing it from a 2 to a 4-lane highway, with an unpaved median approximately 100 feet wide separating the 2 paved sections. Highway 30, west of the scene of the accident, was generally a 4-lane highway; however, it changed to a 2-lane highway about a mile and a quarter west of the accident scene, and remained 2 lanes to and beyond the scene of the accident. At the scene the highway was 26 feet wide, paved with asphalt, and the center was marked with a broken white line. It had flat, graveled shoulders approximately 5 feet wide.
Beginning about three-quarters of a mile west of the area involved a driver approaching from the west was confronted with eight warning signs, four on each side of the highway, reading 'Detour', 'Curve',
Approximately 200 feet east of the T-intersection, traffic was being shifted approximately 100 feet to the north from the existing 2-lane highway to 2 new lanes which, when construction was completed, would be the north 2 lanes westbound of the 4-lane highway. This was being done by means of an S-curve. There was a white metal guardrail on the south side of the S-curve which extended the entire length of the curve. There were flashing yellow lights about 3 feet above ground level, extending the entire length of the guardrail.
Defendant's intestate, Clayton Cochran, the owner and operator of an Oldsmobile automobile, was traveling east on Highway 30, returning from Portland to his home in Walla Walla. Cochran was accompanied by a passenger, Robert Griffith. The other vehicle involved in the accident was a Ford truck with a covered van used for hauling horses, and was owned and operated by Charles Armstrong. His passenger was Frank Russell, the plaintiff's testator. The Armstrong truck traveled south on the approach road from the sales barn, stopped, made a left turn to the east on Highway 30, and after traveling a short distance was struck from the rear by the Oldsmobile driven by the defendant's intestate, Cochran.
The only party to the accident who testified was the driver of the truck, Armstrong. Robert Griffith, the passenger in the Cochran vehicle, although present during the trial, did not testify. Armstrong testified he and his passenger Frank Russell got into the truck near the sales barn. Armstrong started the motor and 'warmed it up' for about 10 or 12 minutes. He turned on the blower to clear the windshield and windows, and turned on the lights of the truck. He testified his vision was clear. The patrolman who investigated the accident testified it was raining just before the accident but, he believed, the rain had stopped and a slight breeze was blowing. Armstrong testified that when he left the sales barn by way of the approach road there was a passenger car ahead of him that stopped at the stop sign at the entrance to Highway 30. He stopped behind that car. After it had proceeded onto the highway, Armstrong pulled up to the stop sign and stopped again. At this time he looked both ways, saw the lights of an approaching car in the distance to his right, and then told his passenger Frank Russell to open the door. Russell opened the door, looked to his right and left and then said, 'It is clear.' Armstrong then proceeded onto the highway, turning to the east. His truck was equipped with a 3-speed gear shift transmission. After he had completed his turn and shifted from low into high gear he proceeded east for a distance which the investigating officer determined to be 111 feet when his truck was struck from the rear by the Cochran automobile.
The force of the impact was such that the dual rear wheels of the Armstrong truck were sheared off and came to rest approximately 60 feet south of Highway 30. The Armstrong truck spun around 3 times. The first time both doors flew open; the second time Frank Russell was thrown out of the truck; and the third time Armstrong was thrown out, striking the guardrail at the S-curve at a point approximately 200 feet east of the intersection. The truck came to rest on Highway 30, facing southwest near the guardrail where Armstrong had been thrown from the truck. The Oldsmobile was completely demolished.
After the impact the Oldsmobile traveled in a semi-circle to the north for a distance of 195 feet. It made a gouge in the surface of the highway and left a furrow approximately 6 inches deep over the entire 195 feet. It came to rest after striking a parked car. Cochran, the driver of the Oldsmobile, was killed instantly. Russell, the passenger in the Armstrong truck, died as a result of his injuries.
Defendant makes seven assignments of error, which fall into two general categories: (1) those relating to the court's rulings and instructions on the speed of the Cochran vehicle, and (2) those relating to the court's rulings and instructions on the question of contributory negligence of Frank Russell, passenger in the Armstrong truck.
Whether there was evidence the Cochran vehicle was traveling at an unlawful speed as it entered the intersection is determinative of the issues presented by defendant's first assignments of error. Under Oregon law, Clayton Cochran had the right-of-way unless he forfeited it by entering the intersection at an unlawful speed. ORS 483.202; and Bush v. Johnson, 237 Or. 173, 390 P.2d 932 (1964), wherein the court, in considering the rights of a driver traveling on a through highway, stated:
Although plaintiff was the favored driver, his right of way was not absolute. Simmons v. Holm, 229 Or. 373, 407--408, 367 P.2d 368 (1961); Rauw v. Huling and Sparks, 199 Or. 48, 60, 259 P.2d 99 (1953). If plaintiff approached the intersection at an unlawful speed he forfeited the right of way. ORS 483.202; Dorey v. Myers, 211 Or. 631, 635, 317 P.2d 585 (1957).
Defendant first contends there was no evidence of excessive speed of the Cochran vehicle. It is true no witness estimated the speed of that vehicle in terms of miles per hour. However, in addition to what has already been related regarding evidence as to the nature and force of the impact between the two vehicles traveling in the same direction, there was testimony of an independent witness that as the defendant's car approached the scene of the collision it made a 'roar like an airplane taking off.' When the cars came together there was a sound like 'metal was flying' and the collision made a loud noise 'like things were flying to pieces.'
As the trial court observed in denying defendant's motion for nonsuit,
You can't take these pictures of the plaintiff, together with the oral testimony, and say that this deceased defendant was driving 90 miles an hour, or 75 miles an hour, but you can certainly draw the conclusion he wasn't driving driving 15 miles an hour, and I think there would be a strong inference that the jury could draw from this circumstantial evidence that he was doing more than 35.
With this conclusion we agree. However, the defendant's principal objection to this conclusion, and the court's instruction that the designated speed was 35 miles per hour, is the contention there was no evidence that the designated speed at the time and place in question was 35 miles an hour. It is defendant's contention the designated speed was 55 miles per hour.
The basic law as to speed in Oregon is found in ORS 483.102, which provides:
Basic speed rule. (1) No person shall drive a vehicle upon a highway at a speed greater than is reasonable and prudent, having due regard to the traffic, surface and width of the highway, the hazard at intersections and any other conditions then existing.
(2) No person shall drive at a speed which is greater than will...
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