Watt v. Associated Oil Co.

• Decision Date: 15 November 1927
• Citation: 260 P. 1012,123 Or. 50
• Parties: WATT v. ASSOCIATED OIL CO. ET AL.
• Court: Oregon Supreme Court

260 P. 1012

123 Or. 50

WATT v. ASSOCIATED OIL CO. ET AL.

Supreme Court of Oregon

November 15, 1927

Department 1.

Appeal from Circuit Court, Tillamook County; Geo. R. Bagley, Judge.

Action by Eliza A. Watt against the Associated Oil Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

This is an action to recover damages for an injury sustained by plaintiff as the result of a collision between an automobile driven by plaintiff's husband and an oil truck owned by the defendant company and driven by defendant O. C. Kumler. The gist of the complaint is that the negligence charged, as stated in the complaint, was that defendants were driving their truck upon the public road, and, while so engaged carelessly, negligently, and unlawfully caused said truck to be parked upon the main traveled portion of said county road so as to obstruct the same at said point about 1 1/2 miles south of the town of Amity; that said road at that place was a paved road, the pavement thereon being 16 feet in width that said truck was so left parked upon the main traveled portion of said road, and was by defendants carelessly and negligently caused and permitted to remain so parked as to obstruct the travel thereon, so there was not sufficient room for a passing vehicle to pass said truck to the right thereof, nor for two vehicles to meet and pass on the left side of said truck.

Defendants answered together, denying the negligent acts alleged in the complaint, and, by a further and separate answer, set up that at the time of the collision the engine of the company's truck became excessively hot, and that it was necessary to stop said truck upon the highway to refill the radiator, in which the water had boiled down, with water from a wayside ditch, and that, after the radiator was so filled defendant's driver was in the process of cranking the truck, for the purpose of continuing the journey, when the same was struck in the rear by an automobile in which the plaintiff was riding.

The answer further alleged that the automobile in which plaintiff was riding was driven by Alex Watt, husband of plaintiff, and was operated at a high and dangerous rate of speed under the circumstances, to wit, at the rate of over 30 miles an hour when the pavement was in a slippery condition, and was operated by Watt without due regard to the traffic upon the pavement, both coming toward and preceding the machine which Watt was driving, and without observing the truck of defendants herein and its position upon the highway, all of which facts were well known to plaintiff; that the plaintiff was reckless, careless, and negligent in failing to remonstrate with her husband on account of the manner in which he was driving the machine, in failing to call his attention to the circumstances surrounding the operation of his car, in failing, under the circumstances, to keep a lookout ahead for traffic upon said highway, and in failing to apply the emergency brake in time to prevent the collision; and that, as the result of her negligence in the respects aforesaid, the collision occurred and said negligence was the proximate cause thereof.

The new matter having been put in issue by the reply, there was a jury trial, and a verdict for plaintiff, and from a judgment upon said verdict defendants appeal.

E. L. McDougal, of Portland, for appellants.

H. T. Botts, of Tillamook (Botts & Winslow, of Tillamook, on the brief), for respondent.

McBRIDE, J. (after stating the facts as above).

The defendants moved for a nonsuit, and later for a directed verdict, and the court's refusal to grant either of these motions is the only alleged error to be considered here.

One who parks his automobile upon the public traveled part of a highway is prima...