Snabel v. Barber
| Decision Date | 16 June 1931 |
| Citation | 300 P. 331,137 Or. 88 |
| Parties | SNABEL v. BARBER ET AL. [a1] |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Wheeler County; D. R. Parker, Judge.
Action by Roy M. Snabel against A. C. Barber and another. Judgment for plaintiff, and defendants appeal.
Affirmed.
W. H. Maguire, of Portland (Dey, Hampson & Nelson, of Portland, and Carl & H. H. Hendricks, of Fossil, on the brief), for appellants.
F. S Senn, of Portland (Senn & Recken, of Portland, and Oliver C Crowther, of Fossil, on the brief), for respondent.
This is an action to recover damages for personal injuries alleged to have been sustained by plaintiff on June 10, 1930, when plaintiff was run into by an automobile driven by defendants. The accident happened on the John Day highway a short distance west of Spray. The traveled portion of the road at that point was about twenty or twenty-one feet in width. Just prior to the accident, plaintiff had been riding on a truck loaded with lumber and driven by his father which had been stopped on the right-hand side of the highway in order for plaintiff to open a gate on the opposite side of the highway so that the truck could be driven into a field where the lumber was to be unloaded. The truck was stopped close to the edge of the road and partially on the traveled portion of the highway and a short distance back of the gate, so that, when started, sufficient momentum could be obtained to cross over the road and pass through the gate to the field. Plaintiff got off on the right-hand side of the truck and passed diagonally in front of the truck across the road, and before reaching the gate was run into by defendants' automobile. Defendants at the time were driving in the same direction that the truck was headed.
Plaintiff testified that, upon getting off the truck, and before proceeding to cross the road, he looked to the rear and saw no automobile approaching from that direction. The road was straight at that point, and he had an unobstructed view for a distance of several hundred yards. There was a slight curve and an upgrade in the road ahead of the truck, but the road was visible in that direction for a distance of about two hundred yards, and coming down the road from that direction at the time was another automobile which he says he was watching at the time he sustained the injuries complained of. Plaintiff testified that, before being struck by defendants' automobile, he had crossed the traveled portion of the highway, and was walking along the edge of the road on the left-hand side of the highway, and that he did not see defendants' automobile before it ran into him.
There is an irreconcilable conflict in the testimony as to the manner in which the accident occurred and as to the point in the road where the accident occurred. Defendants testified that they were traveling some distance behind the truck and saw it stop on the edge of the road, and that plaintiff darted out from in front of the truck and in front of their automobile, and that they were unable to stop before hitting him. There was testimony of others who saw the accident which supported that of the defendants as well as other testimony which supported that of plaintiff. Plaintiff's father testified that defendants' automobile passed him at a speed of forty to forty-five miles per hour, while he was sitting in the truck. The evidence showed there were skid marks on the surface of the road, on the left-hand side thereof, showing that defendants' automobile had skidded for a distance of sixty-four feet and ten inches. The evidence shows that, when plaintiff was struck, he was carried a distance of about twenty feet before being thrown to the ground. Plaintiff at the time of the accident was twenty-two years of age and was a student at Pacific University.
The complaint contains a general averment of negligence, following which is an enumeration of specific negligence. In this jurisdiction, where both general and specific allegations of negligence are made, the latter will control. Morton v. Wessinger, 58 Or. 80, 113 P. 7; Gynther v. Brown & McCabe, 67 Or. 310, 134 P. 1186. The specific grounds of negligence charged in the complaint were: (1) That defendants did not have their automobile under control; (2) that they failed to maintain a proper lookout; (3) that they were operating the automobile at an excessive rate of speed, to wit, in excess of thirty-five miles per hour; (4) that they were operating their automobile upon the left-hand side of the highway; and (5) that they negligently ran into plaintiff on the left-hand side of the highway.
Defendants answered, denying any acts of negligence upon their part, and alleged contributory negligence upon the part of plaintiff. The specific acts of contributory negligence alleged were: (1) That plaintiff failed to maintain a proper lookout and failed to observe defendants' automobile, although it was in plain view at the time; (2) that he stepped from a position of safety into one of danger without first looking to ascertain whether it was safe for him to proceed; and (3) that he stepped from in front of the truck into the path of defendants' automobile without giving defendants any warning of his intention so to do. This new matter was denied by the reply. Upon these issues, the cause was tried to a jury, and, from a judgment in favor of plaintiff, defendants have appealed..
The only assignments of error relied upon by defendants are errors which the defendants claim occurred in the giving of certain instructions and in the refusal of the court to give others requested by the defendants. Defendants predicate error upon an instruction given which reads as follows: "It was the duty of the defendants to drive their automobile in a careful and prudent manner and at a speed not greater than is reasonable and proper and no person is permitted to drive an automobile at such a speed as to endanger the life, limb or property of any person and if defendants failed to comply with this rule of law they would be negligent and if this was the proximate cause of plaintiff's injuries and plaintiff was not negligent then your verdict should be for the plaintiff."
Defendants contend that this instruction was in respect to a matter not in issue and was not applicable to the facts proven. That defendants did not have their car under control at the time of the accident was one of the grounds of negligence alleged in the complaint, and that it was applicable to the facts proven is manifest from a mere reading of the evidence offered upon the trial, but defendants' principal objection to this instruction we think is wholly untenable. They contend that, because there was a specific allegation in the complaint that defendants, at the time, were operating their automobile at an excessive, and what was then an unlawful, rate of speed, to wit, more than thirty-five miles per hour, they had a right to rely upon this specific allegation as the particular ground upon which plaintiff must recover, if at all, and that an instruction such as the one given, which would have been applicable even though defendants were driving at a much less rate of speed than thirty-five miles per hour without having their car under control, was prejudicial. They base this contention wholly upon the case of Hoagland v. Dunham, a decision rendered by the Kansas City Court of Appeals of Missouri, reported in 186 S.W. 1145. That decision, and also another decision of the same court, that of Davis v. Kansas City Rys. Co., 199 Mo.App. 621, 204 S.W. 592, were overruled upon this very point by the Supreme Court of Missouri in Bradley v. Becker, 296 Mo. 548, 246 S.W. 561. The instruction objected to by defendants in the instant case was within the issues, and correctly stated the law applicable to the facts proven.
Defendants predicate error upon the court's refusal to give each of the following instructions:
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...Or. 452, 124 P.2d 304; Patterson v. Skoglund, 181 Or. 167, 180 P.2d 108; Cosgrove v. Tracey, 156 Or. 1, 64 P.2d 1321; Snabel v. Barber et al., 137 Or. 88, 300 P. 331. The allegations of the complaints disclose that defendant was headstrong and determined to continue with the operation of th......
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...error: Ordeman v. Watkins, 114 Or. 581, 585, 236 P. 483; Nettleton v. James et al, 212 Or. 375, 319 P.2d 879. And in Snabel v. Barber et al, 137 Or. 88, 300 P. 331, we held that the instruction was properly refused because, under the evidence, the jury might have found that defendant should......
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...jury is error when there is any evidence, however slight, from which reasonable minds could find for that party. Snabel v. Barber et al., 137 Or. 88, 95, 300 P. 331 (1931); Mounts v. Knodel, 83 Or. App. 90, 97, 730 P.2d 594 (1986). The record demonstrates that the May 10 conference mentione......
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Cosgrove v. Tracey
... ... 71 P. 790; Morton v. Wessinger, 58 Or. 80, 84, 113 ... P. 7; Gynther v. Brown & McCabe, 67 Or. 310, 316, ... 134 P. 1186; Snabel v. Barber, 137 Or. 88, 91, 300 ... P. 331. As stated in Boyd v. Portland Electric Co., ... 41 Or. 336, 344, 68 P. 810, 813: ... ...