Willoughby v. Driscoll

• Decision Date: 17 February 1942
• Parties: WILLOUGHBY v. DRISCOLL et al.
• Court: Oregon Supreme Court

121 P.2d 917

168 Or. 187

WILLOUGHBY v. DRISCOLL et al.

Supreme Court of Oregon

February 17, 1942

Appeal from Circuit Court, Lincoln County; G. F. Skipworth, Judge.

On petition for rehearing.

Judgment appealed from affirmed.

For former opinion, see 120 P.2d 768.

Lamar Tooze and James Arthur Powers, both of Portland (Cake, Jaureguy & Tooze, of Portland, and Mark V Weatherford, of Albany, on the brief), for appellants.

Borden Wood, of Portland (McCamant, Thompson, King & Wood and Robert S. Miller, all of Portland, on the brief), for respondent.

Before KELLY, C.J., and BELT, BAILEY, LUSK, RAND, ROSSMAN, and BRAND, JJ.

BELT, Justice.

Defendants insist that reversible error was committed by the refusal of the trial court to give the following requested instruction "It is the law that when a passenger voluntarily gets into an automobile while the same is being operated by a driver known to the passenger to be intoxicated, such action constitutes contributory negligence. If you find from a preponderance of the evidence that the defendant Harris was intoxicated at the time the car left Waldport for the return journey to Corvallis, and that this fact was known to the plaintiff, then the plaintiff would be guilty of contributory negligence as a matter of law by getting into the automobile."

- ]In the opinion on original hearing ( Willoughby v. Driscoll and Harris, 120 P.2d 768) no mention was made of the above request as it was believed that the same had been covered by the instruction set forth in the opinion. In the light of counsel's earnest petition for rehearing, and after further consideration, we are inclined to think that the court erred in such assumption. It is fundamental that a guest must exercise due care to avoid injury. Whether plaintiff's conduct constituted negligence must be determined by what a reasonably prudent person would have done under the same circumstances. Ordinarily, this is a question of fact for the jury to decide. Koski v. Anderson, 157 Or. 349, 71 P.2d 1009; Pointer v. Osborne, 158 Or. 573, 76 P.2d 1134. As said in Vidal v. Town of Errol, 86 N.H. 1 162 A. 232, 240: "How much liquor, if any, he had consumed, what its effect upon him was, and how much Miss Vidal knew about these things, were all matters for the jury to pass upon."

We agree, however, that no ordinarily prudent person would enter an automobile to ride if, at such time, it was known by him that the driver was intoxicated to such an extent that he could not properly drive the car. Under such circumstances the guest would be assuming the risk of being injured and it could so be declared as a matter of law. It is observed that the above instruction did not include the factor as to the extent of Harris's alleged intoxication and might well be misleading. It is inconsistent with the other instruction requested by defendant, which was given by the court relative to the issue of contributory negligence. After all, the pertinent inquiry was as to whether Harris was intoxicated to the extent of being incapable of safely operating the car. It is well known that there are different degrees of intoxication. Appellants recognized such fact in their requested instruction as set forth in the original opinion. For some reason, however, they omitted this factor in the requested instruction upon which error is now assigned.

In House v. Schmelzer, 3 Cal.App.2d 601, 40 P.2d 577 579-relied upon by appellants in support of requested instruction-the court said: "While an innocent person is entitled to protection from intoxicated drivers and to redress for injuries caused by them, one who accepts a ride under circumstances which should be a sufficient warning to any reasonable person that the driver is not in a fit condition to operate his car has no just cause for complaint when the law leaves him where he finds himself."

In Schneider v. Brecht, 6 Cal.App.2d 379, 44 P.2d 662-cited by appellants-the court found, as stated in Erickson v. Vogt, 27 Cal.App.2d 77, 80 P.2d 533, 536: "*** that the plaintiff, when she entered the automobile, knew of the defendant's intoxicated condition, and knew that the defendant's intoxication had reached such an extent that the defendant was incapable of careful driving."

In Lindemann v. San Joaquin Cotton Oil Co., 5 Cal.2d 480, 55 P.2d 870, 880, it was said: "The question upon which liability depends is whether the plaintiff knew, or should have known, that defenda...