Watt v. Associated Oil Co. , 123 Or. 50 ( 1927 )

McBRIDE, J.

The defendants moved for a non-suit and later for a directed verdict, and the court’s refusal to grant either of these motions is the only alleged error to be considered here.

One who parks his automobile upon the public traveled part of a highway is prima facie a violator of the law, and it is incumbent upon him to show affirmatively that it was necessary for him to so park it at that time and place. It is not the duty of a party injured in a collision, under such circumstances, to show that such parking was not necessary, but for the other party to bring himself within the exception prescribed in the statute. Of course, the mere fact that such parking is unnecessary will not permit a recovery by one who recklessly or carelessly runs against the car so parked. Contributory negligence is still a defense, but this must be pleaded and proved either by the circumstances themselves or by affirmative testimony.

The testimony here is conflicting, but as the jury is made by law the judge of the value and effect of evidence, we have no right to set aside the verdict unless there was a total lack on the part of plaintiff to introduce any substantial evidence to sustain her contentions. The question here is: Did plaintiff introduce any substantial testimony to justify a verdict? The pleading by defendants of the proviso in the statute is defective.

The material part of subdivision 19, Section 2, Chapter 371, General Laws of 1921, so far as it relates to this subject, is as follows:

“No vehicle shall be parked upon the main traveled portion of the highways of this state; provided, that this shall not apply to any vehicle so disabled as to prohibit the moving of the same.”

There is no allegation that the contingency which caused defendant’s driver to stop on the highway was of such a character as to prohibit his moving the same farther along or off the traveled part of the highway, but conceding that the pleading is sufficient, the jury was the judge as to whether the truck was actually stopped for the purpose indicated in Kumler’s testimony, and, if so, the jury was still the judge as to whether there was such an emergency as to justify such stoppage at that place; and, under the surrounding circumstances, the defendant Kumler was the best judge as to this. According to the testimony of both Mr. and Mrs. Watt, the defendant Kumler stated at the time of the accident, and before he had an opportunity to realize the possible financial consequences of his admission, that the collision was all his fault, and, a very short time afterward at Amity, when plaintiff’s wounds were dressed, stated to the doctor that his company would pay for that service, which it actually did.

The jury had a right to infer that this payment was not an act of generosity, but rather on account of the representation of Kumler that he was the party in fault. If the company had been informed that Watt had carelessly and recklessly bumped into its truck and thereby injured it to a small extent, it. is improbable that it would have felt obligated to pay for even a small part of the injuries occurring thereby.

If the jury believed the testimony of plaintiff and his wife, the case is about as follows:

On January 16, 1924, plaintiff and her husband started in a light car, driven and owned by Mr. Watt, intending to go from Salem to Tillamook over the paved highway of the West Side road. The morning was quite foggy in some places and at others not extremely so, but the moisture on the windshield was such as to partially obscure plaintiff’s vision at all times. The windshield wiper was on the left side, and, by its aid, Mr. Watt could see better than his wife, but it is evident that neither was able to see as distinctly as if the weather had been clear. About a mile and a half south of Amity, Watt saw the truck of the defendant in the road a hundred yards or more ahead of him on the same side of the road, namely, on the right-hand side, and supposed that it was traveling in the same direction that he was, probably being misled by the atmospheric conditions. About a hundred yards farther north was a car on the west side of the road apparently coming' south Watt was driving slowly, not to exceed twenty miles an hour, and after sizing up conditions, judging that the car coming south would pass the truck about the same time that he would overtake it, he slowed up accordingly. His mistake was, that the truck, instead of being in motion, was stationary and when he discovered this fact, he put on his brakes and called to his wife to put on the emergency brake, but before this was done, the car ran or rather slid against the rear end of the truck breaking the windshield and fender of Watt’s car, doing other damage and severely injuring plaintiff. The truck was slightly damaged but not to such an extent as to prevent it from going on, and in fact it towed the Watt car to Amity where Mrs. Watt’s injuries were dressed, and later, to Mc-Minnville.

The truck was standing, according to the testimony of plaintiff and her husband, which was contradicted, about two feet west of the east side of the pavement so that there was no room to pass on that side and the proximity of the car coming south rendered it dangerous to pass on the other side. The driver gave a very plausible explanation of the necessity of his stopping where he did, but in view of the testimony tending to show that he had admitted to plaintiff and her husband that he was in fault, the jury evidently did not credit his explanation, probably being of the opinion that he could have gone a mile and a half into Amity before refilling his radiator without injury to his car. It is not for the members of this court to weigh the evidence and say how they would have decided as to its value. We are of the opinion that there was some evidence on the part of the plaintiff which entitled her to go to the jury and, such being the case, the judgment is affirmed. Affirmed.

Rand, C. J., and Coshow and Rossman, JJ., concur.