Ross v. Hayes ( 1945 )

In considering whether the circuit court erred in submitting this cause to the jury, there are certain fundamental legal principles which should ever be kept in mind. This court should not substitute its judgment for that of the jury on a question of fact. The evidence must be viewed in the light most favorable to the plaintiff. After verdict, the plaintiff is entitled to every reasonable intendment of the evidence. When reasonable minds might differ as to whether the defendant Hayes was guilty of gross negligence, under all the facts and circumstances of the case — viewed in the light most favorable to the plaintiff — the question is one of fact for the jury to determine. These principles are so well settled that citation of authorities in support thereof is deemed unnecessary.

In my opinion, there is some substantial evidence tending to show gross negligence on the part of the defendant Hayes. It was not necessary for plaintiff, in order to recover, to show wilful, wanton and reckless conduct equivalent to intentional wrong. Gross negligence is not to be confused with wilful misconduct for there is a clear distinction between the two terms. Gross negligence in this jurisdiction simply means a degree of negligence greater than ordinary negligence. It is a failure to exercise slight care: Cockerham v. Potts, 143 Or. 80,20 P.2d 423. It is negligence which speaks of indifference to consequences: Younger v. Gallagher, 145 Or. 63, 26 P.2d 783.

The statement of facts in the majority opinion is exceptionally clear and accurate but, in my opinion, may well be amplified in a few particulars.

There is evidence tending to show that Hayes was driving on the wrong side of the highway as he entered this slight "S" curve at a speed of 40 to 45 miles an hour and that, suddenly confronted with the oncoming truck, he lost control of his car which skidded crosswise on the ice-covered pavement about 75 feet before the collision occurred.

On direct examination, the plaintiff thus testified about the happening of the accident:

"A. Well, we were driving along, we were visiting, and we came to this curve, Mr. Hayes wasn't on his side of the road, because I remember seeing the truck suddenly and feeling very uncomfortable, feeling that if we stayed where we were that we would be hit by the truck, and then it was a matter of seconds, I suppose, until the rear end of the car slid to the left and we slid across the highway and hit the truck, and that is all I remember then."

On cross examination:

"A. The reason I remembered that we were on the wrong side of the road was because when we saw the truck approaching I knew that if we stayed where we were we would be struck by the truck, so I very definitely remember that we were on the wrong side of the road and in a dangerous position.

"Q. Did you notice that you were on the wrong side of the road before that? A. Yes, I did.

"Q. Well, how far over on the wrong side of the road would you tell the jury that Mr. Hayes was driving? A. Mr. Hayes cut curves quite often."

While the curve was not an abrupt one, it is plain from the pictures introduced in evidence that a driver on the wrong side of the highway when entering a curve would not have a clear and unobstructed view of oncoming traffic. It is reasonable to suppose that, if Hayes could have seen the truck approaching when he first entered the curve, he would have driven on the wrong side of the highway? No, he was just "cutting the corner" and trusting that no other person using the highway would run into him.

Relative to the curve and the visibility afforded the motorist approaching from the north, Serber thus testified:

"Q. And so as shown in this picture one coming from the north would go down that highway and then make a turn this way (indicating) and come back. Is that right? A. Practically an ``S' curve.

"Q. What I am getting at is, when you are back in this direction — that would be south from the curve — how much vision have you got across that curve? Can you see way around the curve, both letter ``S's? A. You can see a man coming around the curve if he is on his own side." (Italics ours.)

Billings testified that Hayes told him that "as he drove into the curve he was on the wrong side of the highway, and when he got into the curve to where he could see the truck the car went into a skid and turned crossways of the road and he could no longer see the truck, he was looking through the windshield out over the ditch, and he skidded from there on and the accident occurred." (Italics ours). Billings also testified that Mrs. Hayes, in the presence of her husband, said: "``Yes, Frank, you were driving on the wrong side of the highway. * * * You had been driving on the wrong side a good many times and I had cautionedyou about driving at the speed you were driving on the highwaywhen it was frosty and icy, * * *.

Prior to this accident we had another accident * * *. At that time you were driving at such a speed on the ice that you had no control of your car'." (Italics ours).

Defendant Hayes offered no excuse or justification for being on the wrong side of the highway. He was not there by reason of any emergency. See Huddy, Cyclopedia of Automobile Law (Ninth Ed.) Vol. 3-4 p. 170, § 102. When he thus entered the curve, he was not in a position to see whether the road was clear of incoming traffic. As said in 42 C.J. 906, Motor Vehicles:

(§ 616 e) "When a motor vehicle is approaching or rounding a corner or curve there is a special necessity for keeping to the right-hand side of the road and the driver has not the right to drive on the left-hand side relying upon having time to turn to the right if a car approaching from the opposite direction comes into view."

(§ 618 g) "The circumstances may be such that driving on the left-hand side of the road will constitute negligence or even gross negligence. Thus, it is negligence for one to drive along the wrong side of the road when conditions are such that he is unable to see ahead of him. It has also been held that the fact that one was driving on the wrong side of the highway is prima facie, although not conclusive, evidence of negligence, and that driving on the wrong side of a highway contrary to statute is of itself negligence imposing liability for an injury resulting therefrom * * *."

Yet it is said in the majority opinion that "Failure of Hayes to drive his automobile on the right half of the highway did not, under the circumstances here existing, constitute negligence as a matter of law," citing Weinstein v. Wheeler, 135 Or. 518,295 P. 196, and Hartley v. Berg, 145 Or. 44, 25 P.2d 932. I am unable to see where these two cases have any application to the facts herein. No collision was involved in either of those cases. True, a motorist may use any part of the highway as he sees fit so long as he has due regard for the rights of others using it. When the way is clear and the highway straight so the vision is not obstructed, it is not a violation of any legal duty to drive on the wrong side of the road, but that is not this case. Here, we are concerned with a factual situation entirely different from that in either Weinstein v.Wheeler, supra, or Hartley v. Berg, supra.

To drive at a high rate of speed on the wrong side of the highway around a curve where the vision was somewhat obstructed and under the dangerous conditions shown to exist in the instant case is, in my opinion, evidence of gross negligence and manifests a reckless disregard of the right of others. At least, it is a question concerning which reasonable-minded persons might well differ — and is, therefore, a question of fact for the jury. There is evidence that defendant Hayes knew or, in the exercise of even slight diligence ought to have known, of the dangerous condition of the highway. In Shearman and Redfield on Negligence (Rev. Ed.) p. 50, § 24, it is said:

"* * * Reasonable anticipation is that expectation created in the mind of the ordinary prudent and competent person as the consequence of his reaction to any given set of circumstances. If such expectation carries recognition that the given set of circumstances is suggestive of danger, then failure to take appropriate safety measures constitutes negligence. * * *"

Hayes had been warned about driving on the wrong side of the icy highway at an excessive speed. After leaving the mountains, the car had slipped several times on "icy patches". He undoubtedly must have seen the "icy patches" a few miles north of the scene of the accident. His experience in going into the snow while driving at 40 to 45 miles an hour over pavement covered with snow and ice ought to have been sufficient warning if any had been needed.

Mr. Serber, the under sheriff, testified concerning the condition of the highway as follows:

"Q. As you went north over that highway what was the condition of the highway as you proceeded north? A. Well, it was the same as I had been traveling over. There were dry spots and icy spots.

"Q. How frequently would you find those icy spots? A. According to the condition of the road.

"Q. You wouldnt be able to say now how many you saw? A. No, I couldn't.

"Q. Did you later on at any time run into any snow A. Yes, I did."

It is 183 miles from Junction City to the place of the accident. Plaintiff testified that they left Junction City at about 6 o'clock in the morning. There is evidence that the accident occurred at about 10:30 A.M. Four stops were made en route which, it is reasonable to assume, occupied an hour's time. Fifteen to thirty minutes elapsed before Hayes' car was pulled out of the snow bank. Pictures were taken at Chemult and at another place. Assuming four hours driving time, Hayes averaged about 45 miles an hour, much of the distance being over mountainous roads which, in many sections, were covered with snow and ice. Finally, there is a reasonable inference of excessive speed on this trip. True, Hayes' experience in the snow bank is quite remote but it was received without objection and is entitled to consideration.

Obviously, the decision in each case, on demurrer to the evidence, hinges upon its own particular factual situation.Layman v. Heard, 156 Or. 94, 66 P.2d 492, is closely analogous.

In the Layman case, the party — including the plaintiff guest — was returning from a hunting trip in Eastern Oregon in the month of November. The accident occurred 3.2 miles west of La Grande. The pavement was dry. No ice was encounteredbetween La Grande and the place of the accident. Heard, on account of his experience prior to reaching La Grande, had general knowledge of the dangerous condition of the highway. As said in the opinion, "As the car was approaching this place at a speed of less than 50 miles per hour the plaintiff saw 50 yards ahead in the shade of some trees, an ice-covered area and called out, ``There's ice ahead. Look out!' Whether the defendant applied his brakes or not the plaintiff was unable to say, but when the car reached the ice it spun around and then hurtled down a sharp rocky decline at the side of the road, resulting in the injury of the three occupants." Heard was not on the wrong side of the highway and no collision was involved. There is evidence that the occupants of the car had often complained to Heard about his manner of driving but that he became angry and drove on — at times increasing his speed. The court properly held it was a question of fact for the jury, saying:

"* * * we express belief that a driver who operates a car, some of the tires of which are smooth, at a speed of 40 to 55 miles per hour, over a roadway upon which icy stretches are occasionally encountered, is driving in a manner which can properly be deemed grossly negligent. * * *."

In the instant case, Hayes, after being warned and after hearing the criticism of the "back seat drivers" did not become angry as Heard had done. He remained calm and stubbornly drove on, paying no attention to his critics. If it was proper to submit the Heard case to the jury — and I think it was — it seems to me the question of gross negligence here is one of fact and not of law.

As said in Herzog v. Mittleman, 155 Or. 624, 65 P.2d 384, 109 A.L.R. 662.

"* * * Where reasonable minds might differ as to what degree of negligence was established by the testimony, it is always a question of fact for the jury and not one of law for the court * * *."

To the same effect, see Storm v. Thompson, 155 Or. 686,64 P.2d 1309.

For these reasons, I dissent.