Sherman v. McAllister

• Decision Date: 17 May 1973
• Citation: 97 Or.Adv.Sh. 14,265 Or. 630,509 P.2d 1176
• Parties: Ruth SHERMAN, Respondent, v. Sydney Rae MacALLISTER, also known as Sydney Rae McLean, Appellant.
• Court: Oregon Supreme Court

Page 1176

509 P.2d 1176

265 Or. 630

Ruth SHERMAN, Respondent, v. Sydney Rae MacALLISTER, also known as Sydney Rae McLean, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 11, 1973.

Decided May 17, 1973.

Jack L. Mattison, Eugene, argued the cause for appellant. On the briefs were Jaqua, Wheatley & Gardner, Eugene.

William M. Collver, Coos Bay, argued the cause for respondent. On the brief were McInturff, Thom, Collver & Rossi, Coos Bay.

BRYSON, Justice.

Plaintiff filed this action to recover damages for personal injuries suffered in a one-car automobile accident. The defendant was the driver of the automobile and plaintiff was a guest passenger. Plaintiff alleged that defendant was guilty of gross negligence in causing the accident. The trial court denied defendant's motion for a directed verdict. The jury returned a verdict for plaintiff, and defendant appeals.

The sole assignment of error is that the court erred in denying defendant's motion for a directed verdict. Defendant contends that the evidence was insufficient as a matter of law to raise a jury question on the issue of gross negligence.

The evidence, viewed most favorably for plaintiff, is as follows. Plaintiff and the defendant were friends. On the morning of November 7, 1969, a Mr. Frank Desirey, plaintiff and defendant met at defendant's home in North Bend, Coos County, Oregon. Mr. Desirey and defendant were to help plaintiff move into a house in Coos Bay. However, Mr. Desirey received a call to go to work.

The accident occurred about 12 noon on Cape Arago Highway, a two-lane blacktop road with gravel shoulders. Defendant was driving plaintiff and Mr. Desirey in her car, a Dodge Charger with a 440 cubic inch engine which she had purchased about three months previously. They were proceeding north on Cape Arago Highway toward Mr. Desirey's place of employment. The road was straight and there was no other traffic. The posted speed was 40 miles per hour. It was raining lightly at the time of the accident.

Defendant came to a full stop as she entered Cape Arago Highway and checked for traffic in both directions. Plaintiff testified that defendant started the car in first gear and quickly released the clutch, causing the rear tires to spin and to throw gravel from beneath them. The defendant shifted into second gear and quickly released the clutch, again causing the rear tires to spin, and the car fishtailed slightly; the third shift was a repetition of the second shift. Plaintiff said, 'Sidney, would you please slow down, the pavement is wet and slippery.' The defendant replied, 'I have wide oval tires and they hold the pavement like tiget paws.' Defendant then shifted into fourth gear, once again spinning the rear tires, causing the car to fishtail. The right rear tire slid onto the graveled shoulder of the road, causing the car to turn to the left and slide sideways on the slick pavement. The car slid in this position for a distance of approximately 350 feet, crashed into a mailbox and telephone pole, and overturned. The car had traveled approximately 950 feet on Cape Arago Highway before it started to slide sideways. Plaintiff stated that just before the crash she glanced at the speedometer and saw that it registered 65 miles per hour. Defendant had nothing to drink during the morning and was not angry or disturbed about anything. Plaintiff further testified that there was nothing unusual or uncautious about defendant's driving before she stopped at Cape Arago Highway prior to the accident. Plaintiff described defendant's driving from the time she entered Cape Arago Highway as a series of 'speed shifts' at a high rate of speed with the motor racing, and that this occurred on a wet, slippery asphalt roadway, causing the car to 'fishtail.'

The Oregon guest passenger statute, ORS 30.115, states in part:

'No person transported by the owner or operator of a motor vehicle * * * as his guest without payment for such transportation, shall have a cause of action for damages against the owner or operator for injury, death or loss, in case of accident, unless the accident was intentional on the part of the owner or operator or caused by his gross negligence or intoxication. As used in this section;

'* * *.

'(2) 'Gross negligence' refers to negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized by conscious indifference to or reckless disregard of the rights of others.'

In Williamson v. McKenna, 223 Or. 366, 354 P.2d 56 (1960), this court equated 'gross negligence' with the concept of 'reckless disregard of the rights of others' as defined in 2 Restatement (Second) of Torts § 500 (1965), which provides:

'The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.' ¹

The concept is further explained in W. Prosser, Law of Torts § 34 (4th ed. 1971) at 185:

'The usual meaning assigned to 'wilful,' 'wanton' or 'reckless,' according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a risk known to...