452 P.2d 308 | Or. | 1969
Lead Opinion
This is an action to recover damages for personal injuries received in a one-vehicle automobile accident. Plaintiff was a guest passenger in a vehicle owned and operated by George Beal, who died as the result of injuries received in the same accident. The defendant is the administrator of Beal’s estate. Defendant appealed from a judgment for plaintiff.
Because plaintiff was decedent’s guest, plaintiff may recover only if decedent was grossly negligent. ORS 30.115(2). The first issue in the case is whether
Another witness, a passenger in a second vehicle, testified that decedent’s vehicle was going too fast but did not estimate the rate of speed in. miles per hour. At the time she first saw the vehicle it was out of control.
It is the court’s opinion that decedent’s actions, as a matter of law, did not constitute gross negligence. A speed of 55 miles per hour was not ex
There is evidence that on the trip to the coast, decedent, who was 70 years of age, demonstrated that he was an extremely poor and highly erratic driver. One of the assignments of error is the trial court’s admission of evidence concerning what occurred 12 hours previously on the trip to Warrenton. Presuming, as contended by plaintiff, that the evidence was admissible to show decedent’s demonstrated lack of skill and thus his knowledge of his own ineptitude as a driver, it is the court’s opinion that the evidence is still insufficient to support a cause of action for gross negligence. It is plaintiff’s contention that decedent’s disregard of the warning to slow down constituted gross negligence when such disregard is considered in the context of decedent’s knowledge of his own limitations as a driver. The testimony concerning the trip to the coast was replete with examples of driving in the wrong lane, cutting across traffic lanes, driving past streets where decedent should have turned, taking .wrong roads, nearly hitting a bridge abutment at 85 .miles per- hour and numerous other instances of ex
There is an additional reason plaintiff cannot recover. Defendant pleaded contributory negligence and contends the court erred in not holding that plaintiff was guilty of negligence as a matter of law. If decedent demonstrated to himself his own incompeteney as a driver to the extent that his continuance of his otherwise ordinary speed constituted gross negligence, he must necessarily have amply demonstrated to plaintiff the danger of riding with him. Plaintiff testified as follows concerning his state of mind prior to commencing the return trip to Portland with decedent :
“Q Were you concerned at all about driving back to Portland with Mr. Beal?
“A Yes, I was.
“Q What, if anything, did you do about it?
“A Well, I told him before we started out— we planned on — Terry (the other occupant) and I, if we should take the bus to go back.
“Q Why didn’t you take the bus?
“A Huh?
“Q Why didn’t you take the bus?
“A I felt kind of sorry, beings he drove out there, and I figured if he promised he would drive decent going back, why, we would have to take á chance.
*190 “Q Did you talle to him about driving back?
“A Yes, I did.
“Q What did you say?
“A He said that he was going to take it easy. He had plenty of time now, and so he was going to take it easy.”
Plaintiff is attempting to walk a non-existent line between decedent’s knowledge of his own ineptitude and plaintiff’s knowledge of the same thing. If decedent’s inability to drive in an ordinary manner was so apparent to decedent that he was grossly negligent in not slowing down at the time of the accident, the danger of riding with decedent was equally apparent to plaintiff. If under such circumstances he was willing “to take a chance” he was negligent as a matter of law. Either decedent was not grossly negligent or, if he was, plaintiff was negligent in riding with him. If a passenger should have reason to know of the driver’s inability to drive safely, the passenger will be barred if he then accepts a ride. Zumwalt v. Lindland, 239 Or 26, 35, 396 P2d 205 (1964), and cases there cited.
The judgment of the trial court is reversed.
Dissenting Opinion
dissenting.
■.If, as the majority assume, the evidence of decedent’s driving from Portland to Warrenton was relevant and admissible, then it was for the jury to decide in what degree decedent Beal’s ineptitude as a driver was responsible for the aceident. That evidence suggests that Beal was a recldess driver whenever he 'was at the wheel. The majority rely on this evidence to.find plaintiff guilty of contributory negligence but it is ignored on the basic issue of gross negligence.
The judgment should be affirmed.