West v. Jaloff

• Decision Date: 13 January 1925
• Citation: 232 P. 642,113 Or. 184
• Parties: WEST v. JALOFF.
• Court: Oregon Supreme Court

232 P. 642

113 Or. 184

WEST v. JALOFF.

Supreme Court of Oregon

January 13, 1925

In Banc.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Action by W. J. West against A. Jaloff. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action brought to recover damages by reason of an injury to the plaintiff arising from the alleged negligent driving of an automobile, or ambulance, owned by the defendant.

The complaint set up an ordinance of the city of Astoria professing to regulate traffic within the city of Astoria which ordinance, amongst other things, defines certain streets and localities in that city as a congested district which district included the locality in which the injury occurred. The ordinance further required that vehicles and street cars, including emergency vehicles, should be driven with great caution, and that their speed should be reasonable, having regard for the traffic, the safety of the public, and the use of the street. The rate of speed for emergency vehicles was fixed at not more than 25 miles an hour.

The complaint further set forth that there was a certain street called Bond street, improved and used for public travel, and one of the principal thoroughfares of the city of Astoria that there was constructed and maintained on each side of Bond street a sidewalk, substantially 8 feet in width elevated substantially 6 inches above the main street, which sidewalk was constructed for and used exclusively by pedestrians and not vehicular traffic, whilst the portion of said street throughout its length between such sidewalks was intended to be and was used for vehicular traffic, as well as for pedestrians; that at the same time there was a street called Eleventh street in said city, which intersected and crossed Bond street; that on each side of such street was a sidewalk 8 feet in width and 6 inches above the surface of the main street; that the crossing of said Eleventh street with said Bond street, in the operation of automobiles, became and was at all times herein mentioned extremely dangerous, in that the main traffic, vehicular and pedestrian, there used and employed said two streets, and same were practically at all times congested, and, in addition thereto, large buildings were constructed at each corner and along each side of such streets throughout a distance of several blocks from each corner, so that the vision of each driver of every automobile along such streets, in either direction, was wholly obstructed until he had passed the first line of intersection, of all of which defendant had full notice and knowledge; that at the time plaintiff received the injury herein complained of there was erected and standing on lot 4 in block 59 of McClure's Addition to Astoria (being the southwest corner of the intersection at which the accident occurred) a two story frame building substantially 50 feet in width by 70 feet in length, the first or ground floor of said building being elevated substantially 1 foot above the sidewalk on each of said streets; that the first or ground floor of said building was at said time used as a public soft drink parlor and cigar store; that the main entrance to said first floor from said Bond and Eleventh streets was through double doors, which had been placed therein after the northeast corner of such building had been cut out, leaving a triangular platform in front of the doors on the line of said streets, and elevated about 12 inches above the same, with one step laid between the steps and the platform.

The complaint then alleges that during all the times therein mentioned the defendant was the sole owner of a motor vehicle, known and designated as an automobile, operated by a gasoline engine of great power and speed, which the defendant, at the time plaintiff received the injury complained of, used and employed for hire in said city; that said automobile was constructed originally as and for an ambulance, dead wagon, or hearse as the particular service might require, and was so used and employed by defendant for hire; that, as plaintiff is informed and believes, and therefore avers the truth to be, such automobile was not being used or employed in emergency work at the time plaintiff was injured thereby, but, if so used, same was not driven with great or any caution at all, but recklessly and negligently, and at a speed in excess of 30 miles an hour; that on the 30th day of October, 1922, in broad daylight, and just as plaintiff had stepped from Bond street onto the platform leading from such street into the first floor of the building on lot 4, block 59, with intent to open one of the doors into said cigar store, the defendant, by and through his servant, while engaged in his employment as such and in the line of his duty, so carelessly and negligently conducted himself that he carelessly, negligently, and unlawfully drove said automobile over and across the sidewalk on Bond and Eleventh streets, and over and against the plaintiff, striking plaintiff with great force and violence, knocking him against said building, and pinning him between such building and the automobile, whereby defendant caused and produced the injuries complained of, which it is not necessary to enumerate in this statement. The complaint then alleges that immediately at and prior to the time defendant so carelessly and negligently drove the automobile upon and against plaintiff defendant was and had been driving said automobile westward along Bond street in the congested district of the city of Astoria, as defined and specified in Ordinance No. 4743 of said city, at a speed far in excess of 35 miles an hour, and that neither said automobile nor the driver thereof was engaged in emergency work as defined in said ordinance or otherwise; that said automobile was not driven with any caution whatever, but recklessly, carelessly, and negligently, and at an excessively high rate of speed, and beyond the control of the driver, wherein and whereby the same was so driven over and against plaintiff, and plaintiff received the injuries complained of. Then follows a statement of the plaintiff's illness from such injuries, of the expense incurred by him in being treated therefor, an allegation as to the permanency of his injuries, and a prayer for $27,640 and costs.

The defendant filed a general denial, including every paragraph in the complaint, except the first allegation, relating to the existence of an ordinance regulating the speed of vehicles in the city of Astoria.

There was a trial and verdict for the plaintiff in the sum of $9,600 and judgment thereon, from which judgment the defendant appeals.

E. V. Littlefield, of Portland, and Norblad & Hesse, of Astoria, for appellant.

G. C. & A. C. Fulton, of Astoria, for respondent.

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

The pleadings are exceedingly lengthy, but the contentions between the parties may be succinctly stated as follows: First, the defendant contends that there is no city or state law regulating the speed of ambulances. Incidental to that is a peculiar condition of the pleadings in which plaintiff alleges that the vehicle which occasioned the injury was, among other things, an ambulance, and was being so used at the time of the injury, which the defendant denies in general terms. Another contention which arises upon the pleadings is that plaintiff, having declared upon a city ordinance practically conceded to have been void, cannot recover upon the common-law allegations of negligence. Other alleged errors will be noticed further in the opinion.

Conceding for the purpose of this opinion, without expressly deciding, that the ordinance is void, there is sufficient in the complaint to sustain a verdict upon the common-law allegations of negligence. Gebhardt v. St. Louis Transit Co., 97 Mo.App. 373, 71 S.W. 448; Jarrett v. Apple, 31 Kan. 693. 3 P. 671. Unless a vehicle of the character mentioned in the complaint is exempted by statute from such liability, there is no exemption. There can be no question but that the streets mentioned are public highways within the meaning of our statute. Subdivision 6 of section 1 of the Oregon Motor Vehicle Act (chapter 371, General Laws of Oregon for 1921), is as follows:

"6. The term 'motor vehicle' shall mean every self-propelled vehicle moving over the highways of this state, excepting road rollers, farm tractors, traction engines, fire extinguishing engines and police ambulances; provided, that every motor vehicle equipped with more than four (4) wheels shall be declared to be a motor vehicle used in connection with a trailer or semitrailer."

This section describes motor vehicles as "every self-propelled vehicle moving over the highways of this state, excepting road rollers, farm tractors, traction engines, fire extinguishing engines and police ambulances." It will be noticed that this subdivision does not exclude from the term "motor vehicle" ambulances in general, but only police ambulances; so, if there is any privilege to private ambulances to run at greater speed than, or entitling them to the right of way over, other vehicles, it is not to be found in this section.

Subdivision 16 of section 2 of the same act is as follows:

"16. Every person operating a motor vehicle on the public highways of this state shall drive the same in a careful and prudent manner, not to exceed thirty miles per hour, and within the limit of incorporated cities and towns not to exceed twenty miles per hour, and at intersections and schoolhouses not to exceed twelve miles per hour, and in no case at a rate of speed that will endanger the property of another, or the life and limb of any person."

So far as this section and the preceding one are concerned, it is very...