Sertic v. McCullough

• Decision Date: 22 December 1936
• Citation: 155 Or. 216,63 P.2d 884
• Parties: SERTIC v. McCULLOUGH et al.
• Court: Oregon Supreme Court

63 P.2d 884

155 Or. 216

SERTIC v. McCULLOUGH et al.

Supreme Court of Oregon

December 22, 1936

Department No. 1.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Action by Paul Sertic against R. H. McCullough, doing business as the Siuslaw Motor Transport Company, and another. From an adverse judgment, the defendants appeal.

Affirmed.

David B. Evans, of Eugene (Immel & Evans, of Eugene on the brief), for appellants.

Winsor W. Calkins and S. M. Calkins, both of Eugene (Calkins &amp Calkins, of Eugene, on the brief), for respondent.

BELT Justice.

This is an action to recover damages for injuries to person and property resulting from a collision between an automobile truck, driven by the defendant Dahlin, and a horse which plaintiff was leading along the highway. Dahlin was in the employ of the defendant McCullough operating under the firm name of Siuslaw Motor Transport Company. From a judgment in favor of plaintiff for $5,000, on the first cause of action relating to personal injuries, and for $150, on the second cause of action based on loss of property, the defendants appeal.

A brief statement of the facts will suffice to present the legal questions involved in this appeal.

Plaintiff was transporting two large work horses in a truck, following the Siuslaw highway leading westward from Eugene to Florence. He intended to engage in logging operations at a point a few miles west of the scene of the accident. After traveling some distance, one of the tires on plaintiff's truck blew out and, after a futile attempt to repair the same, the truck was left alongside the highway. The plaintiff thereupon proceeded on foot leading his horses by halters along the left side of the highway en route to his destination. This highway traverses a mountainous section of the country and the night was dark. It was about 3 o'clock in the morning. Plaintiff had a small two-cell flashlight which aided him in making his way along this curving road. According to his testimony, one of the horses was traveling along the gravel shoulder of the oiled macadam highway, the other walking along a few feet to the right on the edge of it. While thus leading the horses, the two-ton auto freight truck came around a slight curve to the left and struck the horse on the right with such force as to cause injuries which resulted in its death a few hours later. The horse, as a consequence of such collision, was thrown on top of the plaintiff thereby seriously injuring him.

The driver of the truck testified that he was traveling on the right side of the 16-foot highway and that, after rounding the curve, the lights of the truck came upon the horses about 90 to 100 feet distant. He testified further that the horse on the right was walking along slowly in about the center of the highway. He adds that, in an effort to avoid striking it he drove as far to the right as he could with safety, considering the 9600-pound load of freight which the truck carried. Dahlin claims that he did not see the man with the flashlight. After striking the horse, the defendant did not stop but proceeded on to his destination. In explanation of his failure to stop, Dahlin says that he felt only a "slight impact" when the horse was struck. The plaintiff states that when the collision occurred he heard "a crushing, a great crushing, an awful sound, the way the truck struck the horse."

Plaintiff introduced evidence tending to show that the driver of the autotruck cut in on the turn and came over onto the left side of the highway. The defendants assert that the truck was on the right side of the highway. This issue of fact was properly submitted to the jury. Dahlin says that, after seeing the horses, he slowed down to 18 miles an hour, but that he never applied the brakes.

Defendants assign error upon the refusal to give the following instruction:

"I direct your attention to the statute applicable to the situation involved in this case. The law provides that

"'Upon all highways of sufficient width, other than one-way highways, the driver of a vehicle shall drive the same upon the right half of the highway except when the right half is out of repair and for such reason impassable, or when overtaking and passing another vehicle.'

"You are instructed that insofar as the application of this statute is concerned, that the law also is that an animal upon a roadway and every person driving or riding said animal shall be subject to the provisions of this statute. In other words, as a matter of law, the plaintiff leading his two horses is considered a vehicle and subject to the rules of the road the same as an automobile, and it was his duty to proceed on the right hand half of the paved portion of the highway in question.

"I, therefore, instruct you that there is evidence in the case that the plaintiff claims tends to show that he was leading his horses on the left hand side of the pavement for the direction in which he was going which, if it is a fact, is a violation of the statute to which I direct your attention, and is negligence in and of itself, and if said negligence was the proximate cause or a contributing cause to the accident, it will be your duty to return a verdict in favor of the defendants. (Oregon Code, 1935 Supplement, §§ 55-2301, 55-1905)."

In lieu of the above requested instruction, the trial court instructed the jury as follows:

"*** I instruct you that the plaintiff had a perfect right to lead these horses long the highway. It is a reciprocal right. The defendants also had a perfect right to operate their truck upon the highway. But I instruct you that it was the duty of the plaintiff in leading his horses upon the highway to use reasonable care and caution so as to prevent accidents. The plaintiff was required to exercise reasonable care for his own protection and for the protection of the horses, and I instruct you that under the law the plaintiff was not required to lead these horses on the right half of the highway, but he was required to exercise reasonable care in the position in which he had the horses upon the highway so as to prevent the probability of accidents or collision with traffic upon the highway at that time. As to whether or not he exercised reasonable care in this respect is a question of fact for the jury. And too the plaintiff was required to exercise-the care required of the plaintiff must have been commensurate with the danger. In considering that question you take into consideration the fact that the plaintiff was leading these horses around a curve and in the night time and take into consideration the position of the horses upon the highway, and after having considered all of these...