Secanti v. JONES

SLOAN, J.

The case results from an intersectional collision between a car in which plaintiff was a guest, operated by defendant Ron Jones, and another vehicle owned by defendant Seaport Shipping Co., operated by the defendant Mark Hunter Beach, Jr. A judgment of involuntary nonsuit was granted in favor of the defendants Beach and Seaport Shipping Co. without objection by plaintiff. The latter defendants are not involved in this appeal. Verdict and judgment were awarded plaintiff against defendants Jones and the latter appeal. The sole issue presented here is the refusal of the trial court to award an involuntary nonsuit or a directed verdict in favor of the appealing defendants; was there sufficient evidence of gross negligence on the part of the defendant Ron Jones to require jury determination. We do, therefore, review the evidence, and all inferences to be drawn therefrom, most favorable to plaintiff.

At the time of the accident in question plaintiff was a teen-age girl, the defendant Ron Jones, her boy friend of similar age. The car he was driving was owned by his mother, the defendant Leona Jones. In this opinion the word defendant will refer only to Ron Jones. The provisions of the guest statute, ORS 30.110, are too familiar to require repeating here.

The accident happened about midnight of September 23,1956, at the intersection of S. E. Linn Street and S. E. 13th Avenue in Portland. Defendant was driving his car in a westerly direction on Linn Street, plaintiff was riding on the front seat to his right. No other persons were in the car. The defendant drove his car through a stop sign guarding the intersection of 13th Avenue, a through street, and collided with the other car operated by defendant Beach which was then proceeding in a northerly direction on 13th Avenue. There is no evidence to indicate that Beach was driving his car on 13th Avenue at an excessive rate of speed or with any other lack of due care. The headlights of that ear were on and visible.

The record contains considerable testimony of events involving the plaintiff and defendant which occurred earlier in the evening and preceding the accident. There is no need to repeat that evidence other than to mention that at the time of the accident the defendant was looldng for another car occupied by friends with whom they had been associated earlier in the evening. The plaintiff contended that the evidence revealed that at the time of the accident, and for the several blocks the car traveled immediately prior thereto, the defendant was concentrating on looking for the car filled with his friends instead of being attentive to his driving. The case can be decided on the facts of the accident.

The intersection of the accident appears to have been in an area predominantly residential. The two streets were level and paved. There is no evidence to indicate any obstruction of the defendant’s view of the approach of the other car into the intersection. The defendant attempted to show that the stop sign, which commanded him to stop before entering the intersection, was partially obscure by plants growing along the parking area near the sign. By this evidence the defendant attempted to excuse his failure to see and heed the requirement of the sign. The evidence does not sustain such a belief. To the contrary, the evidence we must accept reveals that the sign was in clear view. The defendant also contends that he did not see the approach of the other car until it was only about 25 feet away and obviously too late to avoid a collision. The defendant testified that he simply did not look in the direction from which the other car was approaching.

The evidence in respect to the defendant’s driving shows that he was driving his car at a speed of 25 to 35 miles per hour as he approached the intersection and that he did not reduce his speed when he drove into the intersection.

The evidence as to the position of the other car at the time defendant drove into the intersection is uncertain. The only direct evidence is that of the plaintiff who testified that when defendant’s car approached the intersection she observed the other car. She thought it was about one-quarter to one-half of a block away. We have already mentioned that there was little evidence that the other car was being driven at excessive speed. The plaintiff was also the only witness to the speed of the other car. She estimated its speed to be 40 miles per hour. However, no one testified or claimed that it was going at any greater rate of speed. The driver of the ear was called as an adverse witness by plaintiff. None of the parties saw fit to ask defendant Beach his speed or his version of how the accident happened. It must have been that one party was afraid of his testimony and the other party glad of it. After limited examination by the adverse counsel it was apparent why his own counsel elicited no evidence from him. The only evidence sought from defendant Beach was as to alleged statements made by defendant at the scene of the accident.

Based upon the only evidence available, then, we think it fair to infer that the two cars must have approached the intersection almost simultaneously. There is certainly no evidence, or claim for that matter, that the other car approached so fast or so stealthily as to excuse the defendant’s duty to see it if, in fact, he did not.

The evidence recited would have been sufficient to permit the jury to find that the defendant must have seen both the stop sign and the other car and decided that he would take the chance of beating the car through the intersection. In other words, it could be inferred that he was confronted with an observable obvious hazard and despite ample opportunity to avoid it, decided to accept the hazard.

It was for the jury to decide what inference was to be drawn from this evidence. The defendant contends that he did not see the sign, plainly in view, nor the approaching automobile, also plainly in view; and, therefore, he is only guilty of ordinary negligence. The jury could, and apparently did, believe that defendant saw both the sign and the car and was aware of the hazard created but arbitrarily took the gamble.

In his brief the defendant concedes that: “If the evidence in the present case showed that Eon Jones saw the stop sign at 13th Avenue but paid no attention to it and deliberately drove across the intersection, it might possibly be contended that such conduct was heedless and was [in] disregard for the rights and safety of his passenger.” At the trial the defendant was not asked and did not specifically testify whether he saw the sign or not. The only testimony on what he saw was in answer to the question:

“Q When you got to Linn Street, I mean when your got to 13th Street, what did you do?

“A Well, I was looking up to my right [where the sign was located] to see if I could see any cars and when I got in the intersection about the time I turned around I saw this guy coming right at me there.”

The only testimony given that he did not see the sign was from the testimony of the defendant Beach, previously mentioned. Beach testified that right after the accident the defendant stated that he did not see the stop sign.

The evidence, therefore, would show that he looked in the direction of the sign and that the sign was in full view. The jury would have been justified in disbelieving the statements made at the scene of the accident and finding that the defendant did see what was there to be seen.

It appears to be untenable to say that a driver may deny seeing a hazard readily apparent and thereby contend he was only guilty of ordinary negligence when the evidence would otherwise show that there was no reasonable excuse for a failure to see. To sustain such a contention as a matter of law, as we would be required to do to accede to defendant’s contentions, would permit a driver to avoid Ms liability, regardless of tbe character and visibility of the hazard, by simply testifying that he did not look or see.

The case is very similar in fact to that of Cockerham, v. Potts, 143 Or 80, 20 P2d 423. In that case the driver of the defendant’s vehicle drove from a side road onto a more heavily traveled road without adequate lookout and collided with an oncoming truck. Even though no stop sign required the driver to stop in Coekerham, the court held that it was for the jury to decide if the driver was guilty of gross negligence in failing to slow down before entering the more heavily traveled road. It is true that, in Coekerham, the driver approached the intersection on the wrong side of the road. The ability of the offending driver to see the approaching truck would have been greater had she driven on her right side of the road, but that difference would be immaterial in relation to the present case for here the matter of visibility is unquestioned. In fact, the instant case is a stronger case for here a stop sign warned the defendant and the approacMng hazard was apparent.

In the consideration of this case we have again reviewed the decisions of this court wMch have considered the problem of defining gross negligence. There is no occasion in this case to again recite the basis for decisions in the various cases. TMs has been done in Turner, Adm’r, v. McCready et al, 190 Or 28, 222 P2d 1010, and in a comprehensive note in 33 OLE 216. In tMs particular ease the trial court instructed the jury at considerable length on the subject of gross negligence. The instructions defined the term in the language of the cases most favorable to the defendant. Not only that, but the court repeatedly told the jury that it must find the defendant guilty of reckless and gross misconduct before it could return a verdict for the plaintiff. The instructions made it clear to the jury that something substantially greater than ordinary negligence was required to hold the defendant liable. No effort has been, or could be made, in this court to show that the instructions were not in keeping with the more strict rules adopted by this court.

We are told by the author of a paper on “The Major Issues in a Guest Case” in Ins L J, 583, (1954) at p 591 that: “One of the clearest and most concise judicial enunciations of the law upon this point [when a guest case must be submitted to a jury] is found in the Oregon case of Herzog v. Mittleman, 155 Ore. 624, 65 Pac. (2d) 384.”

The facts and circumstances of this case require us to consider that the defendant entered into an intersection immediately in front of an approaching automobile without reducing his speed, without heeding a stop sign, and when there was no obstruction or impairment of visibility and with an inferable consciousness of the hazard. It was necessary for the jury to decide if these circumstances demonstrated a reckless disregard of plaintiff’s safety. Johnston v. Leach, 197 Or 430, 438, 253 P2d 642.

Affirmed.