Whang v. Houglum

• Decision Date: 21 December 1955
• Citation: 291 P.2d 720,206 Or. 125
• Parties: Y. K. WHANG, Respondent, v. Arnold Emil HOUGLUM, Defendant, and John Hong, Appellant. *
• Court: Oregon Supreme Court

Page 720

291 P.2d 720

206 Or. 125

Y. K. WHANG, Respondent, v. Arnold Emil HOUGLUM, Defendant, and John Hong, Appellant. ^*

Supreme Court of Oregon, Department 1.

Dec. 21, 1955.

W. H. Morrison, Portland, and Howard K. Beebe, Maguire, Shields, Morrison & Bailey, Portland, for appellant.

John H. Buttler, Portland, and Cake, Jaureguy & Hardy, Portland, for petition.

Before WARNER, C. J., and ROSSMAN, LATOURETTE, and PERRY, JJ.

LATOURETTE, Justice.

In plaintiff's petition for rehearing we are told, in effect, that had we followed the case of Cockerham v. Potts, 143 Or. 80, 20 P.2d 423, we would have been compelled to affirm the trial court on the gross negligence question. The brief states:

'If, in the calm of appellante judicial consideration, this Court can validly distinguish the instant case from Cockerham, we invite the Court to do so. If a valid distinction cannot be made, respondent submits that the judgment below must be affirmed or Cockerham must be overruled. In any event, Cockerham v. Potts, may not be completely ignored.'

In the opinion handed down we stated :

'* * * Whether gross negligence applies in a given case depends upon its own particular facts and circumstances.'

It was our view that the facts and circumstances of the Cockerham case were so entirely different from the facts in this case that it was not necessary to distinguish the two. In the Cockerham case it is stated [143 Or. 80, 20 P.2d 427]:

'* * * the Lorett car approached the intersection at a rate of speed of 25 miles per hour on the wrong or left side of the road and very close to the edge of the graveled road; that she proceeded on to the Dayton-McMinnville Highway intersection at a speed of more than 15 miles per hour, going north of the intersection and on the Dayton-McMinnville Highway on the left side of that highway, without any care or caution, without looking for traffic or cars on the Dayton-McMinnville pavement, when she could and should have approached the intersection on the right side of the graveled road, and if she had done so in a cautious manner she could have been seen and avoided by Potts; that she could and would have seen the Potts car for a distance of approximately 45 feet away when she reached the pavement; that if she had had the Ford car under proper control, the collision could have been avoided; and that she was grossly reckless and negligent, and entirely failed to observe the ordinary rules and dangers of the road. Nowhere in the...