Judges: Belt
Filed Date: 10/28/1929
Status: Precedential
Modified Date: 10/19/2024
This is an action to recover damages for injury to person and property arising out of an automobile collision. Defendant is charged with negligence (a) in operating a motor truck at a dangerous rate of speed; (b) in failing to have the truck under control; (c) in operating it on the left side of the highway; (d) in failing to keep proper lookout for traffic on the highway. In its answer defendant pleaded (a) unavoidable accident; (b) contributory negligence. A verdict and judgment was had for plaintiff. Defendant appeals assigning as sole error the failure of the court to grant its motion for nonsuit.
Plaintiff, about midday on November 30, 1928, was driving his Chevrolet coupe in an easterly direction on the Oregon Trail highway between La Grande and Union. He was following at a distance of about 100 fee another car traveling in the same direction, driven by Jesse Breshears, sheriff of Union county. Albert Thompson, an employe of the defendant company, was driving an auto truck on the right side of the highway in a westerly direction. About two inches of snow had fallen on the "black top" pavement on the night before the accident and, on account of its melting, the highway was in a slippery and dangerous condition. Immediately after the truck passed the Breshears car, it commenced to skid to the right side of the highway and then turned skidding to the left side and in front of the oncoming car driven by plaintiff.
Plaintiff thus described how the accident occurred:
"* * * this truck was coming west, and immediately after passing the sheriff this truck skidded *Page 182 — the hind end of the truck first skidded to our left, — the truck's right, and then I at that time probably might have stopped, but I was afraid if I threw my brakes on quick, my back end would go across the road, although I had chains on; and after he got his truck out of the skid to the right, it skidded my way, to the left, and I thought I barely had a chance to pass him, — to get by without his hitting me, but I saw I could not get by and just before the truck hit me, I turned the wheels of my car as much as I could, and ran into the bank and off the grade * * *."
The truck skidded for a distance of 100 feet before it struck plaintiff's car and then continued skidding for a distance of approximately 30 feet towards the right side of the pavement before it finally stopped in a ditch. It is well to observe that the highway at the place of accident was practically level. Plaintiff further testified in substance that he first saw the truck about 100 feet distant and that he gradually applied the brakes and reduced the speed of his car to about five miles per hour at the time of being hit by the truck. The driver of the auto truck was not offered as a witness by the defendant.
We agree with appellant that the doctrine of res ipsaloquitur does not apply to the facts in this case, but it does not necessarily follow that the court erred in submitting the issue of negligence to the jury. This court applied the doctrine in Francisco v. Circle Tours Sightseeing Co.,
It is noteworthy in Osborne v. Charbneau (Wash.),
The general rule that the mere happening of an accident is not evidence of negligence does not mean that negligence may not be inferred from facts and circumstances surrounding its occurrence. It seems entirely reasonable, in the light of the facts in this case, that the jury might well have inferred, taking into consideration the distance which the auto truck skidded, its manner of impact, and its position after having struck the plaintiff, that the driver of the auto truck *Page 184
was driving at a dangerous and excessive rate of speed, in view of the condition of the highway, and that he failed to have the truck under control: Castro v. Hansen,
Attention is directed to De Antonio v. New Haven Dairy Co.,
"Failure to keep to the right when, through no fault of the driver, an automobile skids on a slippery pavement and is thus thrown across the road, has been held to excuse failure to comply with the statute: Chase v. Tingdale,
The judgment of the lower court is affirmed.
AFFIRMED. *Page 185