Tuite v. Union Pac. Stages, Inc.

• Decision Date: 02 June 1955
• Citation: 204 Or. 565,284 P.2d 333
• Parties: Patricia A. TUITE, a minor, by Gertrude Tuite, her guardian ad litem, Appellant, v. UNION PACIFIC STAGES, INCORPORATED, John B. Finn, and Curtis W. Russell, by his guardian ad litem, Bettie I. Burnett, Respondents.
• Court: Oregon Supreme Court

Page 333

284 P.2d 333

204 Or. 565

Patricia A. TUITE, a minor, by Gertrude Tuite, her guardian ad litem, Appellant, v. UNION PACIFIC STAGES, INCORPORATED, John B. Finn, and Curtis W. Russell, by his guardian ad litem, Bettie I Burnett, Respondents.

Supreme Court of Oregon, Department 2.

Argued and Submitted April 14, 1955.

Decided June 2, 1955.

Ray G. Brown, Portland, argued the cause and filed briefs for appellant.

L. A. Recken, Portland, argued the cause for respondent Russell. On the brief were Recken & Recken, Portland.

Randall B. Kester, Portland, argued the cause for respondents Finn and Union Pacific Stages. With him on the brief were Maguire, Shields, Morrison & Bailey, Portland.

Before WARNER, C. J., and TOOZE, LUSK and BRAND, JJ.

TOOZE, Justice.

This is an action for damages for personal injuries alleged to have been caused by the negligent operation of motor vehicles, brought by Patricia A. Tuite, a minor, by her guardian ad litem, as plaintiff, against Union Pacific Stages, Incorporated, John B. Finn, and Curtis W. Russell, a minor, by his guardian ad litem, as defendants. A verdict was returned in favor of all defendants, and judgment was entered accordingly. Plaintiff appeals.

Defendant Union Pacific Stages, hereafter referred to as the 'Stage company', is an Oregon corporation engaged in the operation of a public transportation system. At the time of the accident involved in this litigation, defendant John B. Finn was an employe of the Stage company, driving one of its motor buses.

Northeast Sandy boulevard, hereafter referred to as 'Sandy', is a public street and thoroughfare located in Portland, Multnomah county, Oregon, and extends in a general northeasterly and southwesterly direction. It is a paved street 60 feet in width, and is divided into two lanes for eastbound traffic and two lanes for westbound traffic, with additional space for parking at the curbs. Sandy is intersected at approximately right angles by another public street designated as N. E. 62nd avenue. Traffic at said intersection is controlled by electric traffic control signals. The indicated speed on Sandy at this point and for many blocks both easterly and westerly of the intersection was 30 miles per hour, and traffic lights at the intersections along Sandy were synchronized for a 30 mile per hour speed, so that motor vehicles proceeding at the rate of speed could continue traveling without interruption by stop signals.

Immediately prior to the accident defendant Finn was driving the Stage company bus containing one passenger in a westerly direction in the inside lane for westbound traffic on Sandy, next to the center line of the street. A trolley coach of the Portland Traction Co. was also proceeding in a westerly direction on Sandy in the outer lane, and as they approached N. E. 62nd avenue, the trolley coach stopped at the northeast corner of Sandy and N. E. 62nd avenue to pick up two women passengers, and while it was stopped the Stage company bus passed it on its left and entered the intersection.

Plaintiff was riding as a guest in an automobile being operated by defendant Curtis W. Russell. The Russell automobile was eastbound on Sandy and approaching N. E. 62nd avenue, and was traveling at a rate of speed variously estimated from 30 to 40 miles per hour. A car driven by one Spellman was traveling easterly on Sandy in the outside lane and had been passed by the Russell automobile immediately before the accident. Yet another car was proceeding easterly in the inside lane on Sandy ahead of the Russell automobile, and as the Stage company bus entered the intersection, this car was passing the bus on its left.

The accident occurred between 6:30 p. m. and 7 p. m., on November 13, 1951. In was a dark and cloudy night, had been raining, and was misting at the time; the pavement was wet and slippery.

Defendant Finn was proceeding at a rate of speed of approximately 25 miles per hour as he entered the city of Portland from the east, and by driving 25 miles per hour he was able to go through the three traffic signals east of the intersection at N. E. 62nd avenue without having to stop. As he approached and went through the intersection at N. E. 62nd avenue, he had the green (or go) traffic light in his favor. As Finn approached the intersection, he applied his brakes and reduced his speed to about 20 miles per hour. When the bus was beyond the center of the intersection, Finn observed the Russell car skidding broadside toward him, coming across the center line of Sandy to the north side thereof and into his lane of traffic. Finn then applied his brakes harder, but the wheels on the bus commenced to skid, so that the speed of the bus was reduced little.

Defendant Russell testified that when the bus was about three-fourths of the way across the intersection, a car traveling westerly came from behind or around the bus on the wrong side, and in order to avoid a headon collision with it, he applied the brakes on his car and went into a skid. It might be stated that no other witness saw this car. However that may be, the Russell car while in a skid collided with the left front corner of the bus, spun around in a complete circle, and then struck the Spellman automobile which was by then stopped at the south curb of Sandy.

There was considerable dispute between the parties as to the actual point of impact between the bus and the Russell car; and there was a dispute as to the speed of the Russell automobile at the time of the impact. Spellman also testified that Russell appeared to be making a left turn at the intersection and that his car was not skidding. In any event, the Russell car, a fairly new Mercury, was practically demolished as a result of the accident, and plaintiff suffered severe and painful injuries.

In her complaint plaintiff charged the defendant Stage company with negligence in hiring and maintaining defendant Finn in its employ when it knew or should have known that said Finn was at all times a reckless, negligent, and incompetent servant, that he was habitually reckless in the operation of motor vehicles and had a propensity for reckless driving in violation of the traffic laws and was likely to cause injuries to others by his operation of a motor bus, and that said motor bus would become a dangerous instrumentality in his hands.

Plaintiff also charged the defendant Stage company and defendant Finn with negligence in the operation of said bus at the time and place in question in the following particulars:

'(a) In failing to maintain a proper or any lookout for other vehicular traffic then and there using said Sandy Boulevard, and particularly for the automobile in which plaintiff was riding '(b) In failing and neglecting to keep said bus under proper or any control;

'(c) In failing and neglecting to reduce the speed of said bus, turn it to the right or left, or bring it to a stop, in order to avoid colliding with the automobile in which plaintiff was riding;

'(d) In failing and neglecting, after seeing plaintiff in a perilous position in said Mercury Sedan automobile, and that a collision was imminent, and having opportunity to realize and appreciate the danger of plaintiff, to reduce the speed of said bus, turn it to the right or left, or bring the same to a stop in order to avoid colliding with said Mercury Sedan automobile.' Plaintiff alleged that defendant Russell was guilty of gross negligence in the operation of his Mercury sedan automobile in the following particulars:

'(a) In operating said Mercury Sedan automobile at a highly dangerous, unlawful and excessive rate of speed under the circumstances then and there existing;

'(b) In failing and neglecting to keep said Mercury Sedan automobile under reasonable or proper control;

'(c) In driving and operating said Mercury Sedan automobile upon the north half of said North East Sandy Boulevard at a time when the same was being used by approaching traffic;

'(d) In suddenly applying his brakes so hard that he locked the wheels on said Mercury Sedan automobile at a time when the pavement was wet and slippery and without cause or reason so to do, causing said automobile to skid and cross to the north half of said North East Sandy Boulevard.'

By his answer defendant Russell admitted the negligence charged by plaintiff against his codefendants, but denied all allegations of negligence as to himself.

By his answer, defendant Finn admitted the negligence charged by plaintiff against his codefendant Russell, but denied all allegations of negligence as to himself. The defendant Stage company filed a plea in abatement as to the charges of negligence made against it with respect to the employment of the defendant Finn, and by answer admitted the negligence charged by plaintiff against defendant Russell, but denied all negligence alleged against Finn and itself.

It is unnecessary to set forth the grounds for the plea in abatement inasmuch as no action was directly taken thereon by the court. However, the court did take the allegations of the complaint respecting the alleged antecedent negligence of the defendant Stage company from consideration by the jury, on the ground that it had no application to the facts in this case. This action by the court forms the basis of plaintiff's first assignment of error on this appeal.

Plaintiff's first point under this assignment of error is that 'an injured party in an automobile accident case may pursue the entrustment doctrine along with that of respondeat superior in the same action.' The following authorities are cited to support that contention: Halsan v. Johnson, 155 Or. 583, 65 P.2d 661; Brown v. Fields, 160 Or. 23, 83 P.2d 144; Guedon v. Rooney, 160 Or. 621, 87 P.2d 209, 120 A.L.R. 1298; Oregon Briefs, vol. 1139, for 1938; § 1-911, O.C.L.A.; Krausnick v. Haegg Roofing Co., 236 Iowa 985, 20 N.W.2d 432, 163 A.L.R. 1413; Elliott v. Harding, 1923, 107 Ohio St. 501, 140 N.E. 338, 36 A.L.R. 1128; Annota...