White v. Keller

• Decision Date: 14 March 1950
• Citation: 215 P.2d 986,188 Or. 378
• Parties: WHITE v. KELLER et al.
• Court: Oregon Supreme Court

215 P.2d 986

188 Or. 378

WHITE v. KELLER et al.

Supreme Court of Oregon.

March 14, 1950

Argued Feb. 21, 1950.

Larry Landgraver, of Portland, argued the cause for appellant. With him on the briefs were Norman L. Easley and Leo Levenson, of Portland.

Robert T Mautz, of Portland, argued the cause for respondents. On the brief were Cake, Jaureguy & Tooze, Wilbur, Beckett Oppenheimer, Mautz & Souther, and David Sandeberg, of Portland.

Before LUSK, C. J and BRAND, BELT, BAILEY and LATOURETTE, JJ.

BELT, Justice.

This is an action to recover damages resulting from a collision between two automobiles which occurred on Sunday, June 15, 1947, about 10:30 p. m. on highway 99-W approximately six miles north of Newberg. The cause was submitted to a jury and a verdict returned in favor of the defendants.

The plaintiff was riding in an automobile driven by her husband and which she owned. Plaintiff and her husband were en route to their home in the city of Portland after having visited their grandchildren at Eugene, Oregon. The White car was traveling in a northerly direction at a speed of 45 miles per hour when the Keller car--owned by the defendant, Homer H Keller, and driven by his daughter, the defendant, Verna Keller--was first seen 200 to 300 feet away approaching from the north. Verna Keller was accompanied by her friend, Eleanor Burton, and they were going to Salem, Oregon, where they had secured employment in a cannery. The plaintiff in her second amended complaint and the defendants in their answers and counter-claims allege numerous specifications of negligence, but the real question for the jury to decide in this almost head-on collision was which driver was on the wrong side of the highway. Obviously, if each driver had kept on his right side of the highway, no collision would have occurred. It is not contended that the Keller car was being driven at a high and dangerous speed. Mr. White testified in reference to its speed: 'I just considered they were travelling in a normal manner * * *.' It had been raining and the black-top pavement was wet and slippery. The traffic to and from Portland was heavy.

Plaintiff's husband testified that at the time of the collision the right front wheel of the White car was on the extreme east edge of the pavement and that the rear end thereof was completely off the pavement. The left front part of the Keller car collided with the right front end of the White car. In view of this undisputed evidence it is a reasonable inference that at the time of the impact the White car must have been somewhat crosswise on the highway. Otherwise, the cars in all probability would not have collided in such manner. The impact was so great that the motor of the White car was thrown about ten feet east of the edge of the pavement. Both cars were badly wrecked and had value only as junk. After the collision the cars came to rest on the west side of the highway and were approximately 84 feet apart. The right front wheel of the White car--which was facing north--was seven feet and its right rear wheel was four feet from the edge of the pavement. The Keller car--which had skidded into a ditch--was headed south toward Newberg.

White said that after he first saw the Keller car, he drove 125 to 150 feet at a reduced speed of 35 miles per hour before the collision occurred. White emphasized the fact that he was troubled by the bright lights of the Keller car, but we think that matter must be disregarded since there was no charge of negligence in reference thereto. When White applied the brakes, he momentarily lost control of the car and it went into a ditch about eight feet east of the edge of the pavement. He succeeded, however, in getting out of the ditch under his own power. There was no debris on the pavement indicating where the cars came together. Mr. White's testimony is not clear concerning the point of impact. He speaks of the Keller car being 'over the line,' but stated, 'I couldn't I wouldn't say exactly they were over in my lane or line.' On the following Tuesday, Mr. White inspected the scene of the accident and observed some 'gouges' in the pavement about 32 inches east of the yellow center stripe, which plaintiff contends were caused by the damaged spring or axle of the Keller car. White did not observe conditions immediately after the collision as he was suffering from nausea and shock.

Mr. White was the only eye witness to the accident. The plaintiff said she heard her husband say, 'Damn those lights,' and that she looked up and saw them 'coming right pell mell into us,' and 'that is the last, I can remember.' Miss Burton was asleep at the time of the accident and did not awaken until she was in the hospital at Portland. The Keller girl was so shocked as a result of the collision that her mind was blank about what occurred.

Ralph Blank, a state police officer whose business was to investigate traffic accidents, arrived on the scene a few minutes after the collision and remained there over an hour. The Keller girl and her friend were still in their car in a dazed condition. The officer said he was unable to determine the point of impact. He found no debris on the highway and no skid marks on the east side thereof. He said, however, that he did find marks on the west shoulder of the highway where the Keller car 'slid sideways into the ditch' and fresh tire marks leading 'right up to the White car.' The officer further testified that he saw no 'gouges' in the pavement, referred to by Mr. White.

Carlyle Anderson, a witness called on behalf of the plaintiff and who operates a small motel near the scene of the accident, testified about seeing, on the following morning, three marks about a foot long on the east side of the pavement approximately three feet from the center line. In describing those marks, the witness said that they appeared to have been made 'by some sharp instrument, somewhat similar to where you see a cultivator or a disc having run on a macadamized surface; they weren't very deep.' We attach no particular significance to this testimony as it is entirely speculative as to what might have caused the marks. Shortly after the accident in question, a car going toward Portland skidded into the ditch on the east side of the highway, and it was necessary for another car to pull it out of the ditch. The police officer said the car had dropped into the ditch to such an extent that when it was pulled out, its running gear dragged on the pavement. If we are going to indulge in speculation, it might just as well be argued that the marks were caused by the car which was pulled out of the ditch as it would be to contend that the marks were made by the Keller car.

Plaintiff contends that there is no substantial evidence tending to show negligence on the part of her husband and that the court erred in submitting the issue of contributory negligence to the jury. We think the evidence is sufficient to justify a jury in drawing a reasonable inference that plaintiff's husband lost control of the car and at the time of the impact was driving on the wrong side of the highway. The jury was not bound to accept the version of Mr. White as to how the accident occurred merely because he was the only eye witness thereto. This is a case where the facts and circumstances speak of negligence by the driver of the north-bound car. At any rate, the question was clearly one for the jury to decide and not for the court to determine as a matter of law. Where different reasonable inferences can be drawn from the evidence relative to the issue of negligence the question is for the jury. It is equally well settled that negligence may be inferred from the facts and circumstances surrounding an accident. Davis...