Callander and Stone v. Brown

LUSK, J. These are appeals in two personal injury cases which were consolidated for trial in the Circuit Court. The plaintiffs Kathryn A. Callander and Elizabeth J. Stone were guest passengers in a Willys-Knight automobile driven by the defendant Brown, which sustained a collision with a truck driven by the defendant Allen. There were verdicts for both plaintiffs .against both defendants. Thereafter the court, on motion, entered judgment for Brown notwithstanding the verdict, and from that judgment the plaintiffs have appealed. The sole question for decision is whether there is evidence in the record of gross negligence on the part of the defendant Brown. The accident occurred in Oregon City at about eight o’clock on the evening of June 30, 1945. Shortly before, Brown, who was well acquainted with one of the plaintiffs, who are sisters, chanced upon them in a restaurant in Oregon City where they were having their dinner, and they accepted his invitation to drive them to the home of another sister at Gladstone, a few miles to the north. Their intended route was north on Washington Street to Fourteenth Street, thence west on Fourteenth to a main highway known as the Super Highway, thence north again to their destina *281 tion. On arriving at the intersection of Washington and Fourteenth Streets Brown stopped his car and then moved slowly out into the intersection, making a left-hand turn to go west on Fourteenth Street. At approximately the center of the intersection his car sustained a collision with the truck of the defendant Allen, which was being driven south on Washington Street and had entered the intersection from the north. The plaintiffs were thrown from the Brown automobile and injured. The plaintiffs charged Brown with gross negligence in that he (1) failed to keep a lookout; (2) saw or should have seen the truck driven by defendant Elmer A. Allen approaching said intersection, and saw or should have noticed that said truck was being driven at a high and dangerous and reckless rate of speed, and with said knowledge entered said intersection when a collision was imminent; and (3) failed to yield the right-of-way, and, in the face of impending danger, attempted to make a left-hand turn. There is evidence of the following facts: At the time of the accident it was daylight, the sun was shining, and the pavement dry. Washington Street, which runs north and south, is a through street, forty feet in width from curb to curb. Fourteenth Street, which intersects it, is the same width. A short distance east of Washington Street, Fourteenth Street comes to a dead end. Washington Street, as it approaches Fourteenth from the south, is on a steep grade. At the intersection it levels off. There is heavy traffic at the intersection coming off of Fourteenth Street from the west into Washington Street, and, likewise, leaving Washington Street to go west on Fourteenth Street. Brown, with his two passengers, brought his car *282 to a stop at the foot of the grade and back of the curb line, and waited there until three cars coming from the west on Fourteenth Street had stopped at the west side of Washington Street and proceeded around the intersection and north on Washington Street. Brown then, according to his testimony, “looked and went on around” (i. e., to his left), after having first given a signal for a left-hand turn. There was a clear view to the north for a distance of 1,000 feet or more. But Brown testified that he did not see the defendant Allen’s truck nor a station wagon, which, according to some of the evidence, preceded the truck into the intersection and turned west on Fourteenth Street. Where the truck was immediately before Brown started his car again is in dispute. A disinterested witness testified that it was then about three hundred feet from the intersection going thirty-five miles per hour, and that, before entering the intersection, it speeded up to forty to forty-five miles per hour. Allen testified that he was only thirty feet from the intersection at the time that Brown started, and that his speed was never over twenty-five miles per hour, while, according to the testimony of another witness, it was as low as fifteen miles per hour. The uncontradicted evidence is that Brown’s speed in the intersection did not exceed four miles per hour. Brown’s car traveled approximately thirty-five feet from his starting place to the point of collision; Allen’s truck anywhere from four to ten times as far during the same period, according to the view that one might take of the evidence as to Allen’s speed. We, of course, cannot determine the fact. Our decision must be based on the evidence most favorable to the plaintiffs, which, in the view of their counsel, seems to be that Allen’s truck was very close to the intersection when Brown *283 began bis movement, and that tbe speed of tbe track was about fifteen miles per hour. As stated, Brown testified that be did not see tbe track before tbe collision, and, when asked if be knew bow tbe truck and bis car came together, he answered, “All I know is, that I was bit, and that is all I do know. ’ ’ The plaintiff, Elizabeth J. Stone, testified that Brown drove very carefully and very slowly down tbe Washington Street bill; that be was keeping a lookout straight ahead; that there was no conversation among the occupants of tbe car; that be came to a full stop before entering tbe intersection and that be put bis band out of tbe window before starting again. Mrs. Stone was seated in tbe front seat on the right side of tbe car, her sister in tbe center. She testified that she saw tbe approaching truck, and said to her sister, “We are going to get bit, you better get your purse up”, and that Mrs. Callander said, “It is in tbe back seat.” Mrs. Stone, according to her testimony, bad her own purse in her hand, and put it in front of her face. She was unable to fix tbe location of tbe Brown car at tbe time she saw tbe truck, but, when asked whether it was “just a flash” from tbe time she saw tbe truck until tbe impact, she answered, ‘1 That is it. ’ ’ Mrs. Callander, who remembered nothing of the circumstances of tbe accident except that they stopped at Fourteenth Street and let the traffic go by, testified that she did not bear the statement of her sister, and Brown testified that be did not hear it. Tbe defendant Allen testified that be saw Brown’s car come to a stop at tbe foot of tbe hill when Allen was about 200 feet north of tbe intersection; that Brown was then in the right-band lane of travel not more than a foot from tbe curb on the east side of *284 Washington Street instead of near the center of the street as Brown testified; that he saw Brown give a signal for a right-hand turn as though he were going east on Fourteenth Street, and he thought Brown intended to do so; that he (Allen) was then thirty feet from the intersection, and thereafter looked to the right watching a Ford car which had stopped in Fourteenth Street preparatory to entering the intersection from the west; and that he next saw Brown’s car when it was about four feet away; that he applied his brakes, but that it was too late then to avoid a collision. The evidence indicates that the point of collision was in the northwest quarter of the intersection quite close to the center, and that the right front fender and wheel of the Brown car came into contact with the left front tire and fender and left end of the bumper of the truck. The Brown car, badly damaged, was shoved a distance equal to about its own width, and was facing south when it came to rest. The truck moved on further to the south, stopping close to the curb on Washington Street at the southwest corner of the intersection. The evidence, in our opinion, presents a question of fact as to whether the defendant Brown was guilty of ordinary negligence, but nothing more. In its essence the charge against him in the complaint is based upon his failure to see the truck and yield to it the right of way. His failure in this respect is the burden of the argument for the plaintiffs in this court. That a jury could have found him negligent we think is clear, but proof of ordinary negligence, without more, will not warrant submission to the jury of the issue of gross negligence. Rauch v. Stecklein, 142 Or. 286, 290, 20 P. (2d) 387. And in this case there is no evidence of that indifference to the rights of others which characterizes *285 gross negligence. This is true whether the truck was 300 feet or 30 feet from the intersection at the time the Brown car moved into the intersection. The defendant Brown seems to have exercised a rather high degree of care for the safety of his passengers and himself when he stopped to allow three cars over which he had the right-of-way to pass through the intersection ahead of him. His speed of four miles per hour or less as he proceeded cannot be said to indicate heedlessness or recklessness. Doubtless he should have seen the truck of the defendant Allen, for the view was unobstructed. But it cannot be legitimately inferred that his failure to see it was more than an inadvertence — a momentary lapse of vigilance. Or, if it should be said — what has not been argued — that, notwithstanding Brown’s denial, the jury would have been justified in finding that he did see the truck, since it was plainly visible; still, we think that in this view, it would have been nothing more than an error of judgment for him to proceed into the intersection. His speed, we repeat, did not exceed four miles per hour, and it could hardly be argued, and has not been, that he engaged in a foolhardy endeavor to beat the truck across the intersection. Nor could a finding of gross negligence be based upon Allen’s testimony that Brown was in the wrong lane of traffic for a left-hand turn and gave an incorrect signal, for there is no such charge in the complaint. Hamilton v. Finch, 166 Or. 156, 172, 109 P. (2d) 852, 111 P. (2d) 81. Anderson v. Colucci, 116 Conn. 67, 163 Atl. 610, cited by counsel for the defendant Brown, was a stronger case for the plaintiff than the case at bar. There the evidence was that the defendant drove his automobile at night at an excessive rate of speed— one witness called it “terrific” — and collided with a *286 truck which the brilliant headlights of the defendant’s car should have made plainly visible to him; that there was very little traffic; and that the defendant neither applied his brakes nor swerved from his lane of traffic to avoid the collision. In an action by a guest passenger the court held that there was no evidence of gross negligence, and a judgment of nonsuit was affirmed. Counsel for plaintiffs urge that the case aids them because the court said in its opinion that there was no evidence that the defendant “was warned or requested to do anything different than what he did”, and they point to the evidence in this case that the plaintiff Mrs. Stone exclaimed before the accident, “We are going to get hit.” Had it appeared that this occurred in time to enable Brown to avoid a collision and that, nevertheless, he disregarded the warning, there would be merit in the argument. But this is not the case. Mrs. Stone could not recall that the Brown car started up and moved into the intersection after it had made its stop. She had no recollection of seeing the automobiles which passed around the intersection and in front of them while they waited. She testified that the only car she saw was the truck, and the effect of her testimony is that at the time she saw it and made the exclamation, “it seemed to be right on top of us”, and that it was “just a flash” from that time until the collision occurred. This evidence, in our opinion, does not justify an inference that defendant Brown heedlessly disregarded a timely warning. Tests or standards which aid in determining whether a case of gross negligence has been made out are stated and applied in a number of recent decisions of this court. See Lawry v. McKennie, 177 Or. 604, 164 P. (2d) 444; LaVigne v. LaVigne, 176 Or. 634, 158 P. (2d) 557; Ross v. Hayes, 176 Or. 225, 157 P. (2d) *287 517, 158 A. L. R. 452; Rauch v. Stecklein, supra. Each case, of course, presents its own peculiar facts. At times the evidence may be such that the line separating gross negligence from ordinary negligence becomes' blurred and indistinct. We think that this is not such a case, and that we are well within our own precedents in holding that the proof here fails to disclose conduct on the part of the defendant Brown in the operation of his automobile, such as the guest statute intends should constitute a basis of recovery. We see no merit in the argument of counsel for the plaintiffs that the circuit judge lost the power to enter judgment notwithstanding the verdict because, at the trial, in denying a motion for a directed verdict, he expressed the opinion that the evidence as to defendant Brown was sufficient to take the case to the jury. Nothing in the statute (Ch. 149, Oregon Laws 1945) gives any support to the view that the legislature intended to prevent the trial judge from changing his mind after denying a motion for a directed verdict, and acting accordingly. One of the virtues of the statute, indeed, is that it permits that very course to be pursued. The judgments appealed from are affirmed.