*1 Jаnuary 25, 1956 Argued affirmed December al v. MACKEN BATY et et ux. 2d 489 P. the cause for Small, C. Salem, argued
Brazier were Osterman & him on brief With appellants. of Salem. Williams, argued
R. W. Pickett, of Salem, the cause and filed respondents. a brief fоr
Before Warner, Chief Justice, Tooze, Lusk Justices. Brand,
TOOZE, J. brought by This action was H. William and Corporation, Motors plaintiffs, against Insurance Dorothy K. J. Macken and Macken, as defendants, to proрerty damage recover for to and loss of an use of allegedly by negligent opera- automobile caused by tion of defendants’ motor vehicle the defendant Dorothy Macken. A vеrdict was returned in favor of plaintiffs in judgment the sum of $632.92, and was accordingly. entered Defendants’ motion to set aside judgment the verdict and and for a new trial was appeal. allowed the trial court. Plaintiffs (North The accident occurred on state Highway), public highway Santiam a hard-surfaced extending easterly westerly in an and direction between City, county, Oregon, Mill Marion and Des- Sisters, county, Oregon. approximately chutes is gravel varying 20 feet wide, shoulders of width, painted stripe. and center line is marked with a Since the road crosses the Cascade mountains, frequently during covered and with ice snow the late Although day fall and months. winter on the of the mostly dry, accident the clear of ice and yet places icy spots at numerous thereon there were varying size. р. (Thanksgiv-
About 6:30 November m., ing Dorothy Day), the defendant Macken, with several driving family, members of her defendants’ station westerly along highway, wagon re- in said direction Perrydale, Oregon, turning her home point family Thanksgiving At a celebration in Sisters. county, Marion miles east of Idanha, about five Ore- abrupt gon, a rather to the her car rounded curve patch upon a of the came of ice on surface aat road. testified that she rate She per speed approximately 35 miles hour. She possible presence ice of the on this stretch aware highway, had road as she driven over the that morning way For her she reason, Sisters. speed says had of her that she reduced the ear, icy patch, skidded and the vehicle struck of control. The car started to slide to the out went right and then it went to the across the left lane left, n traffic and into the bank throwing
highway, pas- Macken of her two sengers out on bank. The vehicle then rolled down *3 right highway the to the bank, side, across the back right angles came rest to the center line, and to thereby blocking right and traffic, the lane with shining lights the the bank across toward its passengers Macken, had been thrown. Mrs. where the of those who still in concerned for the condition were the car the road to where then was and ear, the crossed open the front the vehicle. left door started Baty, plaintiff, At moment сar of William this the westerly in a the also curve, came around direction, about 75 feet from the station and when wagon, Baty ahead and vehicle block- saw defendants’ highway. Thereupon, Bаty ing right the side of the gently applied car, on his he too brakes the as icy condition. Macken saw road’s aware fearing Baty moment and, at the same car two ran between the vehiсles, crushed would be she opposite across the lane of pavement, thereof. Because of the plaintiff bring stop was unable to his vehicle to a and, although attempt prevented he did not it, swerving presence to the left because of the of Mrs. Macken in the left lane He did traffic. not swerve right to the nor endeavor to his car ease into the bank Baty’s side. car collided with defendants’ striking it on the vehicle, left rear wheel, result- ing damage to both automobiles. purposes opinion, unnecessary
For negligence charged against to discuss the acts of several plaintiffs’ complaint defendants in nor the acts of con- tributory alleged against negligence plaintiff Baty in paragraph plain- defendants’ answer. one However, complaint ap- tiffs’ is material to our decision on this peal. complaint, paragraph alleged: III of the it is p. during about the “That at hour of 6:30 m. evening plaintiff of November BATY operating and the owner of his 1949 Pontiac general westerly
Four Door in a Sedan automobile Highway upon direction and over said No. 222 in County, Oregon, upon rounding Marion a curve Highway, on said about five miles from Idanha, upon Wagon defendants’ came Ford Station un- blocking highway, said attended, which said operated immediately prior car had been thereto the defendants. That due to the condition of Highway, plaintiff said BATY was unable to his and did strike said automobile said defendants’ damaging plaintiffs’ automobile, automobile (Italics ours.) set forth.” hereinafter plaintiff Upon examination, direct testi- *4 fied: you you I believe stated a
“Q Now, rounded sharp a hand curve, car curve, this highway. close to setting About how across the you it? you to see first were able car were when this Approximately 75 feet. “A lights on? And its were “Q “A Yes. canyon? they pointing across But were
“Q Pointing road. “A across there I know whether was some don’t “Q Now, you highway. you, spots Will on know, ice in jury spots give road? a idea of better just spots They little of it? lоts of ice or there Was they on find their verdict what out to base have witnesses. from the Bight particular spot fairly “A spots places
icy. there where between the sun hit it, didn’t h'it and where did the sun road thеre wasn’t any ice, but these cuts where I hit there some ice. sun didn’t wouldn’t say much it You could around was. walk it. how got You out and walked on it?
“Q ((A Yes. you or not “Q Now, state whether were able to your complete speed you
bring car to a at the you apprised when were of the other were you being there, saw it? car you If the other car hadn’t there, 11A been mean? bring your you No. “Q able сar to Were stop?
complete right there; No, no, “A not at time not stop. complete you You did down as much as “Q slow could? right. apply didn’t “A That the brakes (Italics lock the wheels.” because would hard ours.) *5 Baty On cross-examination, further testified as follows: you. may Thank
“Q You return to stand. the happened, Baty, you applied your What brakes Mr.
? I “A tell Well, could it and I didn’t put force, want to them on full Ias stated before, it because would to the car to slide cause and swerve the hand the road and into bank, the of any damage applied so in order to avoid further I my enough stop I brakes to where could and to wagon, where had to hit the station Ibut couldn’t hitting wagon. the station without your In other “Q words, brakes were on for you 75 feet after saw Ford?
“A Yes. question hypothetical is a bit of a “Q This you may you you it. Do answer could have feel stopped there had been no ice there? (Italics ours.) Yes, 11A sir.” From the facts as stated, is obvious that de any, negligence, if fendants’ had come to rest and was longer plaintiff Baty no active at time drove his automobile around the curve in the immedi ately prior to the collision. It clear that under the presence facts and circumstances of this case the of de stopped merely fendants’ vehicle place question, attendant at time and condition confronting Baty a condition as he rоunded the curve. complaint allegations plaintiffs’ quoted supra, together testimony Baty above set out, conclusively that had show it not been for the particular time and safely stopped place, could have his car before collided with that of defendants, there would no accident. Therefore, have been defendants’ ante been have conld not pоssibly if any, negligence, cedent defend Between of the collision. cause the proximate an accident occurred and the alleged negligence ants’ a force of naturе intervening operation independent collision without which (ice upon pavement), cause intervening and such not have happened, would of the injury. cause and was the proximatе became to defendants attaches liability no such circumstances al., Rice et Blair v. 195 Or for injuries. plaintiffs’ *6 Trunk Railway, 151 Aune v. Oregon P2d 542; 246 595, Torts of the 663; Law, 51 P2d Restatement 622, Or 451. § not in to Macken was negligent attеmpting to an
cross the left side in endeavor to crushed between the two being vehicles escape imminent. Moreover, collision which was act on no played her of Ms part part Baty’s operation for made no to vehicle, he the stalled car attempt pass it the left nor otherwise than drive straight him The condition of the road ahead. prevented other than he did doing anytMng what do. Plaintiffs’ on its complaint, face, that showed the collision To was unavoidable. that an say accident unavoidable is another that way is saying not due to negligence. “Unavoidable accident” an affirmative defense not is not and need pleaded. be v. Nordstrom, Valdin Holteen 199 Or 260 134, 159, v. Arnstein, Denton 504; 28, P2d Or 250 P2d 47, v. Edmunds, 179 Or Frangos 416; Furthermore, P2d 596. there is no substantial evi in this dence record that would that support finding either defendants or the plaintiff Baty was guilty that was cause of the any negligence proximate accident. affirmed. judgment specially concurring.
LUSK, J., solely ground Mr. Justice Brand аnd concur that there is no substantial evidence in record that guilty negligence charged defendants were complaint. agree part in the do not We with that opinion should that, which holds be аssumed guilty negligence, that defendants were intervening was an cause proximate and therefore the cause of the accident. Upon assumption our it would be view that the question proximate jury. cause for the