Salmon v. Miller
| Decision Date | 01 August 1974 |
| Citation | 269 Or. 267,525 P.2d 104 |
| Parties | Millie SALMON, Personal Representative of the Estate of Homer W. Salmon, Deceased, Appellant, v. Walter J. MILLER, Respondent. |
| Court | Oregon Supreme Court |
Milo W. Pope of Galbreath & Pope, Milton-Freewater, argued the cause and filed briefs for appellant.
Steven H. Corey and George H. Corey of Corey, Byler & Rew, Pendleton, argued the cause for respondent.
Before O'COUNNELL, C.J., and McALLISTER, DENECKE, HOLMAN, TONGUE and HOWELL, JJ.
This action was commenced by decedent's wife as personal representative, to recover those items of damage allowed under ORS 30.075. 1 Decedent was injured while riding as a guest in defendant's automobile. The amended complaint alleged gross negligence on the part of the defendant. A subsequent motion for leave to file amended pleadings, through which plaintiff intended to add a count alleging simple negligence, was denied by the court at the close of the evidence. The trial judge directed a verdict in favor of defendant. Plaintiff appeals.
Plaintiff presents two arguments on appeal. First, it is is claimed that the motion for leave to amend should have been granted because ORS 30.115, Oregon's Guest Passenger Statute, is unconstitutional. We have considered and rejected this contention in Duerst v. Limbocker, Or., 525 P.2d 99 decided today.
Plaintiff's second contention is that the trial judge erred in directing a verdict in favor of defendant on the count alleging gross negligence. The evidence established that Homer and Millie Salmon were riding in defendant's pick-up truck, travelling south on Highway 11 to its intersection with Winn Road, where defendant made a left turn and collided with a vehicle travelling north within the northbound lane of traffic. Defendant told a police officer at the scene of the accident that he had slowed before making the turn and used his automatic turn signal, but that he failed to see the oncoming car. The road was dry and a considerable portion of Highway 11 south of the place of the accident was visible for 100 feet preceding the intersection. Photographs of defendant's vehicle show the sun visor on the driver's side in the down position, but the defendant claimed it was up prior to the accident.
Plaintiff's argument is essentially that considering defendant's opportunity to see the traffic moving on Highway 11 at the time he made his turn, defendant must have been more than ordinarily negligent.
Viewing the evidence most favorably to the plaintiff, we are of the opinion that the jury could not reasonably infer that defendant was grossly negligent as defined by Williamson v. McKenna. 2 At most, the jury could conclude that the defendant failed to maintain a proper lookout. This is insufficient evidence of recklessness or gross negligence. 3 We conclude, therefore, that the trial judge acted properly in granting defendant's motion for a directed verdict.
Judgment affirmed.
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...30.115. This court has recently held the statute constitutional. Duerst v. Limbocker, 269 Or. 252, 525 P.2d 99 (1974); Salmon v. Miller, 269 Or. 267, 525 P.2d 104 (1974); and Jenson v. Spencer, 269 Or. 411, 525 P.2d 153 (1974). Therefore, we do not now consider plaintiff's assertions of unc......
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