*1 argued Argued January February rehearing on reversed July May 19, opinion 27, 1960 former adhered BURGHARDT OLSON v. 2d 792
349 P.
This is the defendant, Janet Olson, judgment from which the circuit court entered in plaintiff Gary Burghardt favor of after a gov- had returned for The its verdict him. action is guest 30.110 statute, our automobile OES erned provides non-paying auto- that a in an against “unless cause of action his host mobile has no part the owner the accident was intentional on the of operator gross negligence or in- or caused his rights disregard of the of toxication or his reckless age years plaintiff, others.” The who was 16 injury, appears through guardian the time of his operating charges ad that the defendant, litem non-paying guest, in which he was a her automobile negligent disregard “grossly and acted reckless was rights safety plaintiff.” The defendant years age mishap, at the time of and, represented by guardian plaintiff, is ad litem. like the complaint gives following specifications general charge: its “Driving
1. at a and in a manner considering highway, was unreasonable the dark *3 and other conditions then and condition, ing.” there exist- keep proper 2. “Failed to their vehicle under control.” keep proper “Failed to
3. lookout.” underlays The accident which this action occurred on the road which leads from Molalla to Woodburn. prior to the scene of the Some distance accident the pass- road makes a curve. The defendant’s after ear, space beyond ing through the curve and some left it, plaintiff and in manner the the road sustained injury. his defendant-appellant presents only assign- one upon predicates rulings It error
ment of error. for a motions non-suit and denied defendant’s for a upon Both motions were based directed verdict. con- gross tentions that the record contained no evidence of negligence. by presented
We shall now consider the issues just the motions mentioned. Since the verdict was plaintiff’s give in the favor we will him the full benefit of all of the All evidence. of it came from witnesses called him.
At the times material to the issues of case this plaintiff high and the defendant were school stu- evening dents who lived in or near to Molalla. In the plaintiff, of March the defendant 14, 1957, and some of their fellow students had returned to Molalla they from where Salem had attended a basketball game. Upon reaching placed Molalla an automobile was disposal thereupon at the defendant’s and she invited plaintiff youngsters accompany and two other upon plaintiff her a short ride. The seated himself right to the defendant and the other two youngsters, Willie and Olds Janice took the Parnell, rear A car seat. driven Donald friend, Graves, containing high pupils other some school for about to head Woodburn and when it started the upon plaintiff’s suggestion,
defendant, followed point car had it. After the Graves reached a called paused Blackman’s Corner until the defendant’s car up. Thereupon plaintiff Larry came Burk- occupant an the Graves ear, had brief holder, again At its conclusion the conversation. two cars journeys their with the resumed Graves car nothing The defendant and her lead. friends had trip except mind as to the take a ride. Accord- they engaged plaintiff ing conversation “about *4 game and this and that.” the beyond Blackman’s mile Corner a
One curve occurs beyond Immediately in the road. it was the scene yielded law suit. The misfortune which this places, the two between is, distance between the is about accident and Blackman’s Corner, site of the one mile. through the road the curve the
Since shortly passed accident car had before the defendant’s frequently during trial and received attention the is plaintiff’s (respondent’s) we brief, mentioned in the plaintiff that it had a bear- assume that believes Generally, ing upon can a motorist not the accident. upon straight rapidly in a stretch drive as curve as degree has a of road. of curvature However, bearing upon can material with which he proceed. obviously presents greater sharp A curve sweep- to a motorist than one of a difficulties broad pavement sloped ing character. is so Moreover, operation or banked in some curves that the of cars materially through curve facilitated. upon subject
The sole evidence indicates that begin car the defendant’s did not to skid until it had passed through given the curve. That evidence was plaintiff’s witnesses, one of the member of the Oregon State Police. There is no contention that he misspoke guilty inaccuracy. himself or was of an How passed car far the went after it had defendant’s through signs before it the curve showed of distress was left undisclosed. That no one is, mentioned how upon straightaway car went far the before it escaped from the defendant’s control. The after road, completed straightaway. curve, becomes has nothing Although has been called to our attention which causing that the curve was a tends to indicate factor in concerning accident we will relate the evidence pertaining note of the other it and also take evidence parts of the road. to the other *5 degree
No witness mentioned the of curvature of through turn in the the road which the defendant’s passed just any car had before the accident. Nor did referring descriptive a witness, use curve, sharp, sweeping right angle. term such as or blunt, by The sole source of information afforded the record photo- as to the nature of the turn consists of two graphs by plain- which were introduced in evidence the segment tiff and which show the of road in which photographs the turn occurs. The two were taken opposite part from directions. of them One shows a by person, of the turn itas would be seen like the approached going who defendant, from Molalla. approach The other shows the to the turn as seen person going photograph to Molalla. Each was possibly taken at a distance of 300 feet from the turn. principally strip Each leading shows the of road the turn. The latter was so far from the camera that inadequately represented. it is The road which ex- beyond only by tends the turn is indicated a line of telephone poles possibly parallels pavement. telephone poles The total number of is shown beyond poles in the distance the turn is four. appear straight to indicate a stretch of road. It is impossible photographs to determine from degree of curvature of the turn. It is clear, however, parallels poles that if the road it takes off at an angle degrees. of much than less In truth, so far judged photographs, as can be angle from the appears substantially degrees. to be less than How- attempting degree to ascertain ever, of curvature by looking telephone poles they at the repre- are photographs scarcely sented in anything better guess photographs than work. Further, do not except roughly, enable one to determine, whether the abrupt sweeping. Without road was turn in the sweeping knowing was the turn in the road whether rate of with to decide the or not it is difficult essay men- it. No witness which a motorist could pavement turns where the road tioned whether sloped to facilitate the movement or banked so as through of a car the turn. 17.250states that must be instructed
ORS “* ** proper all the court on occasions: *6 “(6) its own only That evidence is to be not estimated, by weight, according intrinsic but also to power which it is in the of one the evidence to side produce and of the other to contradict; and, therefore, “(7) satisfactory That if weaker and less evi- appears stronger offered when it that dence is satisfactory power was within the
more of the party, the evidence offered should be viewed with distrust.” plaintiff the road was deemed turn in
If the bearing upon this case, a material we can have why something better than these two not understand presented depict- aas means of photographs not was degree and the ing of curvature condition of the place banking at the pavement where the motorist turn. make would hard surfaced to width of
The road feet. pavement shoulder side feet in each On gravel, space affords more for made of width, gravel Beyond shoulder there lies a motorist. deep sloping, muddy drainage with four feet ditch is about four or six feet The ditch broad at sides. deep top. four or six inches is in its bottom. Water its approached the turn the defendant there was When right post bearing highway signs. to her two One representation of them awas aof bent arrow and legend indicated a turn in the road. The other bore the prob- “45 M.P.H.” The defendant testified she ably signs. saw these pavement dry
At the time of the accident the and the weather was clear. The evidence mentions upon except no cars the road the defendant’s and good G-raves’. The car defendant’s was in mechanical headlights burning. condition and her were open, The areas to the sides of the road were there were no structures or is, embankments that could operating upon a ear conceal it. Both the defendant plaintiff and the were familiar with the road and had many upon been times. Both were aware of the that one encounters turns between Blackman’s Corner scene of the accident. The defendant had driven a car over the road several times. plaintiff and the
Both the defendant were rendered injuries they unconscious received in the accident and each was unable to recall the car’s passing along plaintiff the turn in the road. The testified before car reached the turn he noticed *7 miles. He that its was 65 testified that he made concerning no comment that but fact, as the car neared thought that he the turn he mentioned the turn. His were: words * * “* just my memory but it comes to that something can’t remember coming up I said about the curve ahead. happened But I what after that.” plaintiff previously The had ridden with the defendant thought that she was careful driver. We take following testimony: from his anything wrong “Q There wasn’t with her driv- you ing far particular as were concerned on this evening except you thought going a she was fast? little too Maybe a too fast. “A that was all. little Yes, nothing wrong Nothing wrong with the “Q car, highway with the or the surface of the weather or— my knowledge.”
“A Not to Donald the driver of the car which was Graves, quarter as a witness mile ahead of the defendant’s, plaintiff, through rear view for the his testified headlights. He mirror he could see the defendant’s gave testimony: following then yon
“Q can tell or not whether Now, appeared gaining you just she on to be about holding steady or what? say “A I couldn’t for sure but I was Well,
doing maybe keeping up about and she was might gaining. with me. She have been I couldn’t say. quarter “Q You were about a of a mile ahead? “A Yes. you going
“Q Could have been a little faster than that? going.”
“A is what I was 55, 60, successfully passed through Graves the turn in Presently, road and went on. one of his friends something in his car discerned untoward had thereupon happened car and to the defendant’s Graves back. turned Westerberg, Oregon the officer of the
James State upon Police whom we have came mentioned, scene a few moments after had of the disaster occurred. resting upside car was then defendant’s The down pavement. right plain- hand side of the on pinned occupants but the other tiff car three lying Westerberg unconscious near the ditch. were *8 which, began place at a in the road- skid marks saw They completed. way were had been after the curve right pavement. “The He swore half of the the skid Thus, curve.” were not skid marks began car had rounded after the defendant’s marks they began far from the road. How turn in the any They witness. ex- not disclosed curve was roadway foot shoulder of the the four tended across appeared other of the ditch. on the side and then point struck a tele- car had reached that When the By phone pole two. the time it struck and broke it in place gone telеphone pole from the it had 113 feet began. Although the bottom where the marks skid though telephone pole was not moved—even of the top feet. was somehow moved 18 it was broken—the telephone pole apparently car’s collision with The thereupon changed it traveled ear’s course right pavement where half of the feet more to the upside entire course from to rest down. Its it came began spot place where the marks where skid car rest was 197 feet. came to plain- as a witness called defendant, could not recall that she the incidents testified tiff, following taken accident. The from her testi- mony : you starting Do remember the car
“Q to skid? “A No. just about made the “Q You had had curve, completed
you the curve when the car not, skidding? started starting go is the car “A All I remember the curve.” around
Photographs top the defendant’s car show that its badly occupants crushed. The two were and sides of the car’s rear seat, and Janice Parnell, Willie Olds *9 were not called as witnesses.
The above is all that the record reveals. It will be car noticed that no one mentioned what caused the roadway. to leave the no one indicated the Likewise, speed car’s it rounded the turn. the fact as However, got car broke in across two the ditch, telephone pole upon returning pave- then, overturned it had considerable ment, indicates momentum. plaintiff upon charges
Since the based his case gross negligence of recklessness and it was incumbent upon support charges him to those with evidence. The specifications general charges, of the as we have seen, are: speed.”
1. “Unreasonable keep proper 2. “Failure to the vehicle under control.” keep proper
3. “Failure to lookout.” support phase We are aware of no for the third charge, plaintiff’s and since the brief calls go speci- attention to none we will on to the other two general charge. fications of the specification keep
The that the defendant failed to undoubtedly surely her car under control was true, for intentionally upon the defendant did not take her car the erratic course which the evidence discloses. But escape the issue still remains as to whether the car’s gross negli- from the defendant’s control was due to part. gence upon her escape
If the car’s from the defendant’s control negligence, оnly negligent to her then was due which the evidence seeks to conduct attribute to the speed operated defendant is the rate of with which she the car. It will be recalled that no witness was able speed to state the car’s as it rounded the curve. The plaintiff expressed the belief that its was 65 per highway sign. miles hour as it neared the Other produced by also evidence, speed indicates that the him, car’s per was 55 or 60 miles hour.
We will now consider whether
record
con
negli
tains evidence from which a
could infer
gence.
plaintiff,
testimony
weighed
whose
must be
any
in the same manner
other
Kaiser
witness,
Steamship Company,
v. States
203 Or
P2d
91, 276
(1954); Longview
Fibre Co. v. Johnston, 193 Or
(1952);
Emery,
P2d
385, 238
Tate v.
Or
(1932),
167 testimony plaintiff’s some is corroborated to The extent that of the witness and also Graves physical surrounding facts the accident itself. part of
automobile skidded 113 the distance feet, through muddy telephone pole a to break a off ditch, impact enough at its After this the car still had base. carry pave- impetus it back to another 84 feet, position. ment it an where assumed overturned In Baking Co., Three Greenslitt v. Bros. 133 Or (1943), involving pas- P2d not case senger driver, held statute, this court that where the baking applied immediately aof truck his after brakes striking highway a man on the and came halt to a point body impact, hurling 124 feet from the speed 68 feet, the was entitled to infer excessive McVay Byars, from these facts alone. And in v. (1943), involving P2d
Or 449, 138 case the col- plain- lision of cars at two an where intersection, charged driving tiff the driver of the car second with rapid speed, following at too we made the state- : ments
“* * * There was evidence that defendant’s ‘going forty car was miles an and that hour’; traveling speed’. pretty good was more, at ‘a Further sought car was to be deduced from force of the from collision, the serious injuries plaintiff character and one passengers of defendant’s received as a result *11 upon and from the effect of the thereof, the ears. As to the collision say at we latter, least, cannot prove that it did not tend in some measure to the speed driving. at which defendant was Shairer v. v. 272 P. 409, 412, 1027; Or. Johnson, Goodale Hathaway, (2d) 149Or. P. 237, 244, 39 678. Whether speed such cumstances, was excessive or under cir not, the was for to determine.” foregoing, indicated In addition to all high- speed which is revealed curve, for the way per sign, was 45 miles hour. driving upon was road which the defendant
The paved accident was level and at the time of the Although night ample neverthe- time, width. it was pavement atmosphere was clear and less the Only sight, being dry. car. one car was Graves’ only photographs have mentioned show which we they large portray. Both area which two houses in appear feet or so back from the houses to stand 100 mentioned the fact the area road. We have country. open through drove was which the defendant photographs level farm land. The do not It was flat, any billboards or other obstruc- shrubs, show barns, upon could conceal from motorist tions which approaching place. from a vehicle some other road they intersecting show no road and no wit- Likewise, thoroughfare of that mentioned a ldnd. ness says: ORS-483.102 person upon high- shall drive a vehicle “No greater
way than is reasonable and regard having prudent, to the due surface traffic, highway, the hazard at inter- and width of any existing.” other conditions then sections driving provision, the defendant’s act Under per only hour miles was unlawful rate of 65 at the prudent, having “reasonable due was not if it high- regard and width of surface traffic, any way, intersections and other hazard at condi- existing.” then tions provision designated makes for 483.104
ORS speeds. those enumerated None of section of except applicable to the situation before us laws our *12 any following: “fifty-five per miles hour in other question The within the cate- locations.” area falls gory the defendant’s of “other locations.” Therefore, driving place question conduct in at the the rate per of more than if in fact she so drove, 55 miles hour, “prima constituted facie evidence of violation of OES speed “greater 483.102.” That of a than is, is reason- prudent.” able and her However, violation of OES nothing ordinary 483.102 would establish more than negligence. guilty nothing
If the defendant was than more ordinary negligence, judgment which the circuit plaintiff’s court entered in the favor must be reversed purposes supra, because one of the of OES 30.110, liability guest to relieve the host of to his social from consequences ordinary negligence. He is liable only injury to his if the was intentional or was gross negligence due to recklessness, or intoxication. complaint charge makes no of intoxication or injury. charges, gross intentional It in addition to negligence, recklessness. We do not find in the record any evidence of recklessness as that term is defined § Eestatement of the Law, 500. Torts, However, go we shall on and determine whether or not the record support contains evidence which finding gross can negligence. “gross negligence”
The term has defied all efforts to up convert it into a formula made percentages quantities or other distinct which will judge, enable a lawyer, appraise or a driving of a motorist challenge which is under and determine certainty with gross only whether it amounted to or ordinary negli- gence. However desirable it would be to distill from large precedents volume of Eeports are in the have touchstone criterion which would test other seemingly “gross negligence” is the term
attributes, repulse all efforts to remain a maverick and determined subject a formula. exactness of it to the progress can made in the direction But some be *13 certainty the evi we start with a case which of if commonly plaintiff deemed is dence submitted ordinary negligence. proof nothing For more than of dry, upon example, a a drove evidence that defendant ample country lonely, open, paved, road of width level, per generally speed is a more than mies hour at of no ordinary nothing regarded than of more as evidence negligence, that much. if it deemed to establish even upon proof Accordingly, a rests if the burden of negligence, gross plaintiff no and he has to establish except that the defendant that which shows evidence paved, country dry, lonely, open, level road a drove on ample a of no more than 65 miles of width proof. problem per a of burden of then we have hour, purposes as we have 30.110, of OBS seen, of the One liability non-paid guest from to his a host relieve is to nothing ordinary guilty than of more host was if the guest point negligence. must to some Therefore, thing which shows that it in the record establishes ordinary part negli than upon of the host more inkling give gence. an of It must fool willfullness, disregard warnings, an abandonment to hardiness, adoption revelry of an attitude or the of “I don’t guest’s happens.” If the evidence care what estab go nothing of that kind and can lishes no further driving to show that his host’s was of the than kind past regarded nothing the courts more ordinary negligence, his case must fail than for he discharged proof. not burden has many the mere held times that This court has showing presence in a record of evidence ordinary negligence guilty does not war- driver finding a in favor of social rant negligent grossly operated manner. Bur- driver P2d made v. 199 Or this Nash, rows pertinent ruling:
“* * * a violation "basic rules does gross negligence in and of constitute not, itself, # » # #
Shortly it added: “* * * Combined with other conditions, may upon
violation of the rule be basic considered * # question gross negligence engaged Then decision in this observation: “* * * certainly would be an unusual speed, where case, constitute and of indeed, would itself, * * gross negligence *14 Boyer, v. 131, Baird 187 210 Or P2d is an 118, application just of the of illustration the rule stated. Hayes, Ross In v. 176 P2d 225, Or 157 the 517, driving through as defendant, host was driver, what speed the decision mentioned as an “S curve” at a pavement space an of to 45 miles hour. The for a “making of 100 to feet was covered with frost extremely slippery.” point road the surface At that defendant’s car skidded and the collided awith truck. plaintiff, non-paying guest, sought The as the re covery damages charge gross negligence. of on a of reversing judgment in plaintiff, Our decision, for the declared: proof
“Mere that the driver of the automobile guilty ordinary negligence was opera- in the require cases the in all not of the ear does tion question of whether submission * * * negligence. guilty gross
he was failure of a total there is “In the ease bar part negligence gross of defend- proof on operated auto- he manner ant. part on his an indifference did not indicate mobile consequences probable act or to the of his to the rights Nothing Ms driv- connected with of others. I-don’t-care-what-happens mental ing ‘an resembled ” attitude.’ Rogers, Mich 241 NW v. In Bobich sought a turn to rоund driver, host defendant, plaintiff, his which the rate of at a road reversing a guest, In non-paying excessive. termed plaintiff the decision said: judgment for the * * “* negli- Conceding that defendant Mgh speed, making gent turn at it would misconduct.” and wanton wilful not constitute plaintiff’s claim that mentioned the decision Then the Michigan speed violated a rate of the defendant’s ruled: and the court statute, traffic # any, if of that statute does Violation, neghgence gross or wanton and not constitute requisite to maintenance of an misconduct wilful act.” under action just the decisions of which we took from see We place accident took unfortunate if the that even note presented plaintiff evidence the curve, gross finding negli to warrant not suffice does that the car left gence. he assumed it could If immediately after it had rounded the pavement turn, escape from the defendant’s control at its *15 sway centrifugal point due to the lurch, was that imparted rounding it in the curve, which was force have failure to yet defendant’s an event the in such momentary only would and was situation mastered the employed such as Ganten cases rule fall within Huckelberry, Her P2d 792. 315 605, Or v. bein negligence. gross any, amount to not would if fault, nothing indicates contains The record her duties as attentive to was not the defendant was operator it intimate that she nor does of the car, safety guests. duly No of her not solicitous steering hands off the that she took her one contends eyes transferred her atten- off the road or her wheel, plaintiff along sat side conversation. The tion to the least at watched, times, and since he her highway sign speedometer and likewise noticed it is safe to infer that if the car neared it, operation in her had relaxed duties defendant nothing have noticed it. There is the car he would the kind mentioned in v. Givens, in the record of Keefer McCready, P2d and Turner v. 808, 611, Or Bridgmon, 222 P2d Reese v. 1010; 28, 190 Or 217 Or and v. 573; Curtis, 340 P2d Gonzales 217 Or 561, concerning warnings given ignored P2d adoption “I-don’t-care-what-happens of an or the could transmute the defendant’s attitude” which any, ordinary negligence, gross negligence. if into any the evidence does not fact disclose with degree precision the curvature at the turn renders fairly appraise driving. it difficult to defendant’s plaintiff presented said As we before, evidence probably from which the could have found, negligent, the defendant’s did, hut, opinion, presented in our he no evidence from which anything more than that could have beеn inferred. present That did he not is, evidence from which the *16 174 road could have found that the turn the rapid sharp was so that
so defendant’s say only foolhardy juror and those a could safety gave guests their heed to the of would who no attempted In turn in that manner. other have not in the record evidence which we do find words, gross negligence. finding a of could warrant assignment of is The chal- error sustained. lenged judgment is reversed. specially concurring.
O’CONNELL, J., including from It is evident our cases, more interpretation guest that our of the ones, recent statute, entirely has not been OES consistent. Note: 30.110, (1954). Perhaps any L 216 33 Rev further Or effort clarify simply to the matter will lead to further con- application a but the need for fusion, consistent of great express my is so that I statute venture to hope they might suggest views a solution. position To establish stable in the treatment of guest under the cases statute we must reach some agreement measure of as to the standard of conduct which we conceive the statute describe language “gross negligence” disregard and “reckless rights of the of others.” One would be naive to as- anything rough guide sume that more than a could by which host-guest be devised to test the facts in the pattern only, cases. But if we cut a crude and follow lawyers judges it, the trial would at least something guide have dealing them in with this type of case. part think
I of the solution will be found problem in a clearer statement which confronts application guest us in the of the statute. Our statute, phrased is states, in most like the statutes language speaks categories It of fault. terms of negligence” negligence, “gross degrees which, i.e., according from which it is to the classification category negligence greater than borrowed, ordinary negligence. speaks con- It also of “reckless” regarded part as a duct which is sometimes negligence separate classification and as a sometimes type of v. Wilcox, fault. See State Or 110, universally (1959). pretty nearly P2d It is now *17 recognized respectable legal circles that one can- negligence degrees. Negligence not divide into is negligence, whether the conduct involves the failure great slight any gradation to exercise or or care, duty under the if, circumstances there is a between, plaintiff. Prop- The Law of Personal Brown, erty (2ded) p Harper 2 and Law 327; James, (2ded), p of Torts, Prosser on Torts §16.13; 147; (11th ed), p Salmond on the Law of Torts 511. It proper, postulate principles liability is of to course, of upon the basis of the amount of care as a which, matter policy, should be exercised in various circumstances. underlying theory implied This is the guest statute. applied
If the statute were
in accordance with
language,
expected
its
we would be
to draw a line in
ordinary
gross
each case between
negligence.
and
pointed
as
out
Since,
thing
there
above,
is no such
gross negligence,
the court cannot make the dis-
suggested
tinction
and the best that it can do is to
gross negligence
“great
translate
negligence”
to mean
Rogers,
Ltjsk
as Mr. Justice
did in
Administrator v.
Southern Pac. Co., 190
(1951),
643,
Or
176 permit draw a line on the scale of fault will us to carry purpose think it out where we that will purposes guest This we of the statute. is what have previous guest Finding tried do in our cases. it impossible to make on distinctions the scale fault higher at the lower we looked on the scale level, for aggravated type by leaving a more of fault which, “ordinary” chasm it wide between could fault, be readily guest applying more differentiated statute. seen that the Thus, elimination of the aggravated less serious instances of fault intended to “gross negligence,” be included in the term resulted simply legislative not from an effort to state the policy guest necessity but from statute, finding gulf a workable test fault. The widest the clearest distinction could have been established prove requiring intentionally that his host injured Taylor Taug, him. v. 17 Wash2d 533, 136 P2d (1943); Taylor, 176 Parker v. 196 81 Wash P2d 22, 806 (1938); v. Davis, Wash P2d 61 1005 156, Carufel (1936); Olson, Shea v. 185 Wash 53 P2d 143, 615, ALR affirmed 186 1183, Wash P2d (1936). ALR 998
Next an lower on scale is area of fault which legal (“wilful,” gone names has various “wanton,” generally “reckless”) can be characterized by the actor’s consciousness of risk. This area is some- negligence times described as and sometimes as some- thing negligence. supra; distinct from State v. Wilcox, (2d ed), p Harper Prosser on 2 150; Torts and James, § Law 16.15. The Torts, feature which is thought distinguish “ordinary” negligence to it from is the 2 actor’s state of mind. Eestatement, Torts, g; Degrees Negligence, comment §500, Elliott, 6
m
again language
(1933). Here
L Rev
143
91,
So Cal
gradations
fault within
can
fashioned to describe
be
blameworthy
would
conduct
this
itself. The most
area
in which the driver-
in a situation
be
involved
knowledge
high probability
having
actual
host,
intentionally
guest,
to
harm to
elects
of serious
his
guest
expose
to the unreasonable risk. For con-
might
conduct as reckless
we
describe this
venience
frequently
Type
described as “wilful”
It is
conduct
I.
“wanton”
or as “wilful and wan-
conduct,
сonduct,
§
2
500
ton” conduct.
describes
Restatement, Torts,
Distinguishing
it as “reckless” conduct. See Note:
Negli-
Wilful
Wanton Misconduct,
Misconduct,
(1949);
Appleman,
gence,
L Rev
Note:
18 U Cinc
319
in Automobile
Wilful and Wanton Conduct
Guest
(1937). According
L
Ind
13
J 131
to some
Cases,
adjudicated
language
strong enough
cases the
to
indicate that this is the character of the
fault
driver’s
guest.
which must be established
v.
Clarke
Ill
Storchak,
564,
384
52 NE2d
322
229,
US
64
713,
(1944).
Tighe
LE
S C
v.
1270,
Diamond,
See:
(1948);
149 Ohio
80 NE2d
520,
St
82 NE2d
(1938).
v. Rohde, 66 DS
178 guest test for to tive of fault and is easier the establish subjective Type than the test for reckless conduct I. Type guest If I conduct is the test of the fault, produce to he would have to evidence show that warned danger, the driver of the or that the driver had actual knowledge danger from some other source that being Perhaps jurisdiction no encountered. consist- ently probably adheres to such a all courts test, recognize requisite “may that the consciousness of risk dangerous manifestly be inferred from conduct.” 2 Harper p. § of James, Law Torts, 16.15, 955, McCready, call note 27. Turner v. P2d Or clearly (1950) may states that the inference be drawn. Mr. Justice Brand “The element said, may, recklessness under some be in- circumstances, ferred from evidence the driver’s conduct in the light of conditions and of what he have known.” must 190 Or 54. likely part guest
It is in of the confusion cases arises out the fact distinction between types the two of reckless conduct described above is kept in not mind. And even if the distinction is seen, application objective variation test Type described in reckless conduct II will result if changes court its attitude from time time as necessary to the amount of evidence to draw the in- ference that the driver had reason to know of facts which would lead a reasonable man to realize danger. possible It that this has caused some of application variation of our own statute. practice exрress has
It become common test fault in this state terms of an “I don’t phrase part This of the driver. attitude” on care *20 legal language expressing idea in the virtue of has by jury. I believe the But can understood which be “passing judgment generality encourges in its that p (Green, Judge Jury, 156) moreover, and and, bulk” emphasis the consciousness the idea of its on the on other led to overlook occasions risk has us equally, not if more, test which are elements important.
The full risk is be en- consciousness if countered will not result in reckless conduct probability slight, probability of harm is or if the is great probably but harm which will result is not by serious. This can be illustrated reference to the present facts case. difficulty finding
There is no in that defendant approached was conscious of a risk when she the curve. previous particular highway From her use of the she knew the curve was there, its character and the speed highway sign speed indicated as the safe negotiate ingredient the curve. The which is lack- ing high degree probability is the that serious harm knowledge would result. It common that curves frequently negotiated safely speeds are which ex- speed posted highway depart- ceed the indicated recognize ment. We rounding are entitled to speed twenty a curve at a miles in excess of the per indicated of 45 miles hour does not, high probability itself, show that there is involved a way, upon serious harm. Stated in another basis of such alone facts there is not a sufficient warn- ing danger to characterize the conduct as reckless.
Had it been shown in this case that the curve was sharp, or that there were highway, defects in the equipment in the or other circum- road,
construction stances known to the defendant which would increase probability in all the risk of case would harm, present submitting sufficient to warrant facts it to jury. There were no such facts here.
I believe that the variations in our treatment of
previous
statute in
cases can be attributed
large
general language
measure to the use of
(such
expressing
the test for fault
the test in the
attitude”)
suggests
formula of an “I don’t care
clearly enough the idea that
the defendant must be
conveys
conscious of the risk but
little more than that,
de-emphasizes
perhaps
sometimes even results
*21
eliminating
ingredients
the other
in the test for
reckless conduct.
I think that we would establish
reasonably
position
maintain a
consistent
guest
subject
if
cases we would
each case to a tеst
all
recites
of the elements of reckless conduct
as we
accept
understand that term.
I would
as the
test the definition set out in 2 Restatement, Torts,
p
§ 500 at
That
1293.
section reads:
“The
disregard
actor’s conduct is in reckless
safety
of
intentionally
of another if he
does
an act or fails
an
duty
to do
act which it is his
to
knowing
having
other to do,
or
reason to
know of facts which would lead a reasonable man
only
to realize that the actor’s conduct not
creates
an
bodily
unreasonable risk of
harm to the other
high degree
but also involves <a
probability
substantial harm will result to him.”
adopted
This section has been
apply-
in some states in
ing
guest
their
statute.
App2d
DeLoss v. Lewis, 78 Cal
(1947); Espeland
223,
It type is that this of statute proverbial ingratitude intended to “scotch ‘the dog of the that bites the hand that him’ feeds and to put a way litigation.” barrier in the of vexatious 2 p The 961. Torts, of Law
Harper The James, and admin- system of judicial the task to the leaves statute presentеd the and policy this istering case as each not is or is particular conduct as to whether decision policy. reference with be made must reckless the part cohesion lack of possible of the that a It is the anchor failure guest from the results cases negligence, conduct gross reckless definitions statutory purpose in the terms similar legislative judge this case with the driver’s failure to guide. policy as a always apply, be there will test we
Whatever keeping problem from function distinct our jury. whether task is to determine sole of the Our particular case before are sufficient facts there reasonably jury can find from which the us conduct. caused defendant’s reckless accident was temptation diffi here is to leave to the ordinary drawing a misconduct cult task of line between Coeling, conduct. Rinkevich v. and reckless See (1955), L noted in 34 Det Mich 74 NW2d U J duty (1956). charged But we are with the interpreting establishing and of what statute to be the minimum amount of fault which we conceive can still characterize the conduct as reckless within meaning setting of the statute. In that minimum we must not read into the statute our own view of policy govern host-guest litigation which should litigation generally; attempt or automobile we must legislative objectives prompted to find the legislation. sharply legislative policy No defined can strong language be but discerned, fault understanding setting statute and our in which host-guest legislation gives was drafted us a fair *23 which, A New But cf., Burrell, work. intuition -with Approach Wanton Mis- and to the Problem Wilful Ins Law 716. J conduct, liability the shift in ideas of the basis for
With compensation preva- from fault to to be seems only jury respectable not room but in lent, legal application of the circles as statute well, original purpose serves to accentuate terms of its the difference in treatment between the automobile adjudication respec- and others in the of their Traffic tive claims. Tort Law and Green, Victims, passim; Harper The Law of Insurance, James, passim; (1958). Perhaps Note: 35 Dicta 179 Torts, jury permitted the time has come when the should be guests to treat automobile in the same manner as it injured plaintiffs; change treats other but that must legislature, come from the not from us. my opinion
In there was not sufficient evidence in present jury justifiably case from which the could conclude that defendant’s conduct was reckless within meaning 30.110. ORS Therefore, I concur. (Pro Tempore),
HARRIS, J. dissenting. The constitution of this state demands that “No fact tried shall be otherwise re-examined any court of this unless state, the court can affirm- atively say there support is no evidence to the ver- Oregon dict.” § (1910). Art Constitution, 7, 3 commenting In provision on this of the constitu- tion, this court stated Kelsey, in Hamilton v. 126 Or 26, 268 P 30, 750, follows:
“* * # proceeding In. investigation with our we must bear in mind that we are not authorized weigh appraise the value of the evidence. powers limited our this state has The Constitution detecting presence.” its
to that Com., Acc. in Farrin v. Industrial This court State following approved the 984, 104 Or 205 P § Pacts, taken 1 Moore on 20: statement from *24 * * # jurors, "Judge Cooley and ‘The said: weigh they judge are to of the facts and alone, has tribunal law established this evidence. The it is from its numbers, believed that, because jurors and the fact that the of their selection, mode they society, all of are better come from classes weigh probabilities judge calculated to of motives, may what be called a common-sense view and take involving and act of a set of circumstances both pure, any single wise, however intent than man, may People v. 17 Garbutt, eminent he be.’ and Mich. Moore on Pacts. 9; “ jury, experience knowl from their and ‘The presumed edge life, of are of the common concerns Judge of to the Missouri of said Scott fact,’ be the best triers ‘They Supreme take them Court. with experience jury-box in their which life,
into the has enabled them will ascertain the by they to form the rules which weight given to to the evidence be hearing, anyone speaks sight in of who their and having due the circumstances consideration of Schoenvald, which he is surrounded.’ v. State 155. Mo.
“ discussing the relative merits of a ‘Without trial tribunal for the trial of and the facts, fixed Judge jury,’ said of the North Pearson Carolina Supreme ‘suffice it that law Court, common prefers and considers latter, safer, investigation depend upon good to facts, of jury, upon knowledge of a than the juries of a sense judge; take for reason that a common- every question, according sense view to its peculiar judge generalizes whereas a circumstances, everything system to an and reduces artificial by study.’ L. Williams, v. formed Jones State (47 N.C.) 269. my experience ‘In Miller said: “Mr. Justice Supreme room of the the conference Court judges, I have which consists of nine United States, readily judges surprised to find how those been agreement upon questions to an law, come they disagree regard questions to how often apparently are as clear as thе fact, which law.’ § on Moore 19.” Facts, Only plaintiff favorable the evidence and the plaintiff inferences deducible favorable therefrom are to be considered on motion to remove a case jury. from the consideration of a “ may is that if ‘The rule two inferences be legitimately drawn from the facts one evidence, favorable the other unfavorable to the defend- question presented for ant, calls opinion jury.’ McCabe, Galvin v. Brown & (101 671).” 53 trial Acc. Pac. Farrin Or. 598 v. State Indus- *25 supra, p Com., 464. legal presented The sole issue to this court is not appraisal guilty its as to whether not or defendant was gross negligence of as that term has been in defined prior (apparently decisions of this court to the satis- legislature, faction of the which has not altered the guest statute), presented but whether the evidence such concerning is that reasonable men could differ the conclusion to be drawn from it with reference gross negligence. to the of issue speaking Mr. Justice for this court in Storm Rand, Thompson, v. 155 Or 686, 694-695, 64 P2d 1309, a not case too dissimilar from the instant case, said: say
“We cannot from the facts above stated all that reasonable minds would draw the same negligent defendant or not
conclusion that the negligent, negligent, same if whether the and, gross negligence. ques- those Hence, amounted to tions questions of law for the court but were not jury. questions the fact for the When were reasonable minds will differ facts are as to whether tion of such negligence, the determina- there was jury only and it is matter is for the the be from the facts inference to drawn where is so plain will draw all reasonable minds question that it becomes same conclusion court.” law for the laid the Restatement. rule is down
The same the court’s control varies in extent of “The jurisdictions United States, different permit goes general further than to no but court question when, from the to withdraw presented opinion, the evidence court’s men could not differ as to reasonable such from it.” to be drawn 3 Restate- conclusion (2). on Subsection Comment 438, Torts, ment rely plaintiff is entitled on circumstantial Thus evidence. Justice as direct as well Wolverton, speaking v. court in Nat. Bank Fire Asso- for the P stated: ciation, Or P 172, 187, * “* * That there was no direct evidence explicit firing goods, implicating fact gainsay; ques- proprietors, none can but the any whether there was direct evidence, tion here is go jury, sufficient to from circumstantial, they fairly fact at could infer the issue. If jury, question was for the and the court so, by directing province its them could not invade bring kind of verdict.” certain *26 accepts majority’s the statement rela- The writer speed in this case to the issue as follows: tive # Similarly, jury present 6C% # the
187 infer the defendant’s case could permissibly curve as 65 miles possible high at the speed hour.” per that defendant had full
Indicating knowledge the curve and its question, character, highway the hour speed sign designated and the 45 mile per to is the follow- curve, the safe speed negotiate statement taken from the concurring opinion: ing
“There no that defend- difficulty finding is ant when was conscious of risk she approached From the curve. her use of the previous particular she knew that the curve was its highway there, character indicated speed highway as the safe to sign negotiate curve.” Both the prevailing seem concurring opinions to whether question curve was a one. Also sharp prevailing opinion seems whether question curve awas causative factor the accident. There- fore, the writer herewith annexes exhibits 4 and 3. Exhibit portrays the curve in the direction de- fendant’s car was exhibit 3 traveling; portrays curve from the opposite direction. From these photo- graphs submitted the could find curve awas sharp one —at least a 45 degree curve. The Texas Supreme Court characterizes 30 to 45 degree curve as follows: “—that the curve was a rather one of from sharp 45 degrees.” Burt v. Lochausen, Tex SW2d 194. More- the defendant over, herself concedes and characterizes the curve as a curve. sharp Thus she states in her brief: “The accident occurred just beyond a sharp curve which is shown in Exhibits 3 and 4.” It is sub- mitted the defendant should be familiar with the curve. Likewise it is reasonable to assume defendant would *27 an admission in her not brief that was make
not justified by the record. causal between reference the connection
With it must be' remembered accident, curve the the dry, pavement was and that the car started that the pole of the on fat least feet east marked to skid Again 3. defendant states her brief exhibit n follows: physical police “The evidence observed on Exhibit Skid officer is indicated 5. marks began just long past curve and ran to a feet telephone pole highway, which was broken off the in' two.” light
Viewing the of the cardinal evidence paragraphs, principles it in earlier is sub- reviewed reasonably jury find could that curve mitted the definitely a factor in the cаusative accident. How was held as a matter of law the curve can it be defendant when it is remembered a factor not speed of an at a rate of 65 miles hour entereddt “just nighttime? the skid marks started The fact that past no effort Was made indicates brake curve” “just past out control until became the oar curve.” opinion majority states: *
“* * obviously sharp presents A curve greater than one a motorist difficulties to sweeping pave- character. Moreover, broad sloped or banked some curves ment is so through materially operation the curve is of cars facilitated.” sloping that the matter bank-
It is submitted sufficiently portrayed pavement any, ing, if could an so that make and 4 exhibits 3 *28 opinion prevailing appraisal comments The thereof. photographs, adequacy and 4. exhibits 3 on the that these exhibts were testified herself The defendant representations No of the curve. correct true and by defendant or here was raised below contention contrary. warning Department placed Highway The State drawing signs atten- at the entrances to this curve, per designating speed a miles tion to it and well that she was hour. defendant admitted acquainted realized curve and that she with the speed approaching a submitted that she it. It is designated speed nearly per cent in excess of the 17-year-old nighttime negotiating by girl this a upon highway as indicated evidence curve a such negligence jury. gross found to be could be contrary con- all minds arrive at reasonable Would clusion? highway department
It will be remembered sign designating negotiating had for erected per pro- at 45 miles hour. this curve ORS 483.106 speeds designation upon for the the basis vides *29 engineering investigation, and that of an traffic investigation any only an and determination that after reasonably speed greater than is safe under the is any upon highway state found to exist conditions speed designated. presumption The be should such faithfully performed highway officials state is the their functions. opinion prevailing states as follows:
The that a must 17.250states be instructed “ORS by “ * * proper all the court on occasions: “ only not ‘(6) estimated, is to he That evidence according weight, also but intrinsic its own power of one side it in the the evidence produce contradict; and, other to and of the therefore, satisfactory “‘(7) evi- and less That if weaker stronger appears it when
dence is offered satisfactory pоwer of the the was within more party, with should be viewed the offered evidence distrust.’ plain- the road was deemed the turn in the
If
tiff to have
can
two
depicting
bearing upon
case,
this
we
a material
why something better than these
understand
not
presented
photographs
was not
as means of
degree
and the
of curvature
condition
banking
place
pavement
where
as to
make the turn.”
motorist would
always
opinion
writer was
The
statutory
applied only
foregoing
rules
to situations
exclusively
posses
in which the evidence
Frangos
party.
Edmunds,
v.
of one
sion
Or
P2d
Fitze v. American-Hawaiian
596;
SS.
595-596, 173
was way, or that there were defects in the equipment
or construction in the road, or other circumstances known to the defendant which would *30 prob- in all harm,
increase the risk of the case ability present would sufficient facts to warrant submitting jury. it to the There were no such facts here.”
It is submitted that characterized record, the concessions of the indicates that defendant, sharp curve was and that the could find one, high degree probability existed that serious operation harm would result from the of a car at 65 per nighttime. miles hour into this curve at prevailing opinion upon The relies the case of Ross Hayes, Michigan v. 176 Or P2d and the 517, Rogers, case of v. Bobich 258 Mich 854. NW Hayes opinion points In Ross v. out that the acci happened: dent “* * * they passing through As were an S Algoma, Dodge suddenly near
curve, swerved highway clock-wise across the and skidded side- ways 75 more feet.” points Hayes The court also out in Ross v. as follows: twenty- “Where the accident occurred the entire pavement foot width of the oiled macadam for a distance of 100 to 150 feet was covered with frost, making extremely slippery. the road surface highway any particular frost on the ‘doesn’t show just looks At color; clear.’ times it can be seen depending somewhat on the direction in which one looking. you ‘Lots of times can’t see until you right top are on of it.’ Defendant Ault testi- any seeing fied that did not have he trouble in place say ice at the but he did not accident, where he was when he first saw it. Neither de- any Hayes passengers fendant nor Dodge pavement car noticed the frost or ice on the car before the started to sldd.
"* * * * *31 to was described curve above referred “The S say very steep curve at all. I wouldn’t a as ‘not just steep Plaintiff a modest curve.’ curve, was a driving Hayes was from estimated that defendant into this an hour when he ‘went 40 to 45 miles ” curve.’ appears in Boss the curve involved It thus very steep driver was and that the not a curve, was per going entered hour when he from 40 to 45 miles question in was that the ice or frost curve; also, car started to not noticed the driver before the case differentiates the Boss skid. This, course, fully from the instant case where the driver was cognizant of the condition of and the curve, the road warning sign, speed of the and where her was far in excess of that of the driver the Boss case. Michigan Rogers, supra,
The case of Bobich v. is inopposite Michigan, pointed for two reasons. In as is opinion, out in the willful and wanton misconduct proved recovery. must be before there can be a Like- only wise, evidence with reference to driving Bobich was that the defendant was in excess per of 20 hour. miles Oregon
It is submitted that case which closest to the facts of the instant cause is Storm v. supra. Thompson, The Storm case was an action injury by plaintiff recover for an sustained while rid- ing passenger a as defendant’s automobile. At being the car the time was driven defendant’s who was not brother-in-law, familiar with the road. opinion stated The the road nearly made a turn at right angle, but the car at the time of the accident only going per was 40 or 45 miles Although hour. defendant himself was not behind the wheel the question gross court held that negligence his properly jury, doing was and in so submitted stated follows:
“The evidence in the instant case shows that competent the driver of the automobile was a experienced driver but that familiar he was not turns, with the road or with its known to the with the road and knew the attempting and this fact was familiar who was himself defendant, danger passing pass the turn where accident high speed. night of the occurred at a rate of dark but the dry, very roadway accident was and the accident would not have
happened had the speed. automobile been driven at a less rate of signs warning vicinity There were no turn reaching passed before the ear had and, it, roadway straight over for considerable dis- *32 being according to driven, tance and was defendant’s testimony, at some 40 or 45 miles an hour.
“The further the defend- evidence shows engaged plaintiff in conversation with ant was had her husband and times his head turned in Apparently paying their direction. attention to the road or to the location car. Just before he was no
of reaching the turn and about 100 a feet therefrom there was house with which the familiar and he defendant was knew that within very sharp therefrom there was a a short distance pass. Upon seeing the car would have to turn which driving he warned the driver that he was house, warning this came too too fast but late to enable speed to check the the driver the car so as to make the turn in the road for that and, reason, highway car driven off the was where the acci- plaintiff happened. dent to say “We cannot from the facts above stated that minds all reasonable would draw the same con- negligent the defendant was clusion negligent, or not negligent, if and, whether the same gross negligence. ques- Hence, amounted those questions not were of law for tions the court but jury. questions of fact for the were When the facts differ as minds will reasonable are such that negligence, the determination whether there only where is for the the matter plain the facts is so drawn from inference to be the that all clusion same con- minds will draw the reasonable question for the of law that it becomes court.” judged gross negligence case must be each
While exactly upon similar, and no two are facts, its own authority weight that the decided it is submitted jurisdictions supports proposition from outside similarity bearing that under facts to those involved question gross in the instant of defendant’s cause, negligence is considered one of for fact the deter jury. Nangle mination of the v. Northern Thus Ry. Co., Pac. 96 Mont 32 P2d we find the 11, 14, following statement: many permitting “In under cases, statutes re covery guest against on behalf of the the driver gross negligence of an automobile for —where proceeding speed, at an driver, excessive rate of warning signals approaching
failed to heed on curve in the road, and where the driver was ac locality quainted driving, with the in which he was approaching and a under where, these on conditions, pro he failed to reduce curve, his and, ceeding around such curve, overturned his car or objects resulting injury collided with guilty —it is held that whether the driver was negligence gross jury. was for the Sorrell v. White, A. 103Vt. Welch v. 277, 153 359; Auseth, Wash. *33 Zelinsky 287 P. v. 652, 899; Howe, 163 Wash. 277, Taylor (2d) App. P. 294; 1 596, v. 116 Cockrell, Cal. (2d) P. note 16; 86 A.L.R. 1145.” Hampshire The New court in MacGowan v. Mills, A2d 797, NH holds as 84, 798, follows: jury properly “The could find on all the evi- driving defendant high dence was at a -196 speed exceedingly rate of and that he was heedless although of the he knew of situation, the existence danger of the curve and understood the involved approaching speed in be found he was it at the at which it could driving. fully These facts would justify finding gross negligence as that term
is defined the Massachusetts decisions.” Hill, In Brown v. 228 SC SE2d 838, 841, Supreme Court of South Carolina holds as fol- (In lows South Carolina heedless and reckless dis- regard rights proved of others must be in a case.): conflicting testimony
“The to which we have together physical referred, with the facts testified by Corporal Dubose without contradiction, amply carry sufficient the issue of brought whether the unfortunate accident was by appellant’s about approaching danger- in recklessness taking proper ous curve without or in not care, having operating her car under control, in speed excessive the circumstances.” Supreme Court of Texas in Bernal v. Seitt, in a 313 SW2d late case 520, 522, states the follow- ing: “Conceding ordinary that, case, view by taken court below would be well taken, we
yet consider on the that, instant record, find- ings gross negligence are sustained authority evidence under the of Burt v. Lochausen, Kirkpatrick 151 Tex. 249 S.W. 2d 194, v. App., Tex. Civ. 153 S.W. 2d Neal, 519, wr. of error regard want of merit. refused, we Indeed, stronger gross negligence instant'facts as for than those of Burt v. Lochausen, that here we have several absent positively circumstances, there, point safety toward conscious indifference to the say, persistence, that is to repeated others, after warnings, in excessive over a known difficult
197 at a such marked persistence road and further after dark with the increase of curve consequent from the of the truck.” light oncoming danger the matter under touching upon Other cases con v. Kimberly Reed, are sideration Ga 53 App 137, 79 v. Howe, 1 208; Zelinsky SE2d 163 Wash P2d 277, Nockas, v. Alexiou P2d 171 Wash 294; 911; 369, v. White, Sorrell 103 Vt 153 A 277, 359.
In Rauch v. Stecklein, 20 P2d 286, Or 387, Justice Rossman, this court, Mr. speaking through reviewed four cases which the court concerning stated:
“It will be observed that in the four cases just reviewed the was inflicted under circum- injury stances which made the tortious act an hardly inadvertent one.” of the
One
four cases referred to was the Iowa
Secor,
v.
Cerny
case
Iowa
In Hayes, supra, opinion his dissenting Belt p Justice Mr. Chief said: “In whether the circuit considering court erred in tain fundamental this cause to the there submitting jury, are cer-
legal principles which should ever kept be mind. This court should not substitute that of the on a judgment its for question The evidence must be fact. most favorable to the viewed the light After
plaintiff. verdict, to every entitled reasonable intendment plaintiff evidence. When reasonable minds might Hayes was guilty the defendant differ as to whether cir- all the facts and under of gross negligence, most in the light of the case —viewed cumstances of fact is one question favorable to plaintiff —the are to determine. These principles for the jury of authorities support that citation so well settled *35 unnecessary.” is deemed thereof the writer the opinions opinion Because cause are not in a reversal this result fundamental announced principles with the harmony and because the writer Chief Justice the late Belt, are invasive of the they province is of opinion he triers of fact, compelled the constitutional dissent. to respectfully
ON REHEARING por Respondent’s Rehearing Petition Philip argued A. Levin, for cause Portland, appellant rehearing. on With him on the brief were Oregon City. Jack, Groodwin& Santos, George Oregon City, argued L. Hibbard, the cause respondent rehearing. for on theOn brief were Beattie, Uney, Oregon Hibbard, Jacobs & Caldwell and Harold City.
Before Chief Justice, McAllister, Rossman, and Millard, Warner, Perry, Sloan, O’Connell Justices.
ROSSMAN, J. accompanying
The petition brief for a re- hearing argument presented and the rehearing on have given been careful consideration. In fact, the entire analyzed case has been once more. original opinion gives
Our parts a review of all appear of the any evidence that bearing upon to have appeal. issues submitted petition The for rehearing makes no claim that our review was un- incomplete. argues fair or It that we should have affirmed the judge action of the trial which submitted not re- and that we should have
the case to the challenged judgment. versed the Only were witnesses testified. All of them four Only plaintiff. them seen two of had called They plaintiff were the and the thе accident occur. they them swore that could not defendant. Both of anything about the of the recall whatever movement entry immediately preceding its into the car curve or point example, from that on. For neither what occurred plaintiff nor the defendant could remember whether any occupant screamed before the car met with its mishap it or whether slddded. other two witnesses police upon (1) a officer who came were the scene a place (2) after the accident had taken few minutes plaintiff Donald the friend of the Graves, who was driving quarter the car which was mile ahead proceeding defendant’s and which was place. He did not see the same direction. accident take original opinion plaintiff states: “The Our testified the car reached the that before turn he noticed that speed notwithstanding was 65 miles.” so stated its We plaintiff part fact that the had sworn in one testimony he made his his estimate of the de- speed the car fendant’s before had reached Blackman’s stopped it will be where, recalled, comer for several minutes. we shall Nevertheless, continue to assume the car’s as it neared the turn was 65 miles. nothing whatever
There in the record which young occupants the four indicates of the car gay were in carefree frame of mind. The record petting, romping, singing mentions no activity or other *37 draw would the defendant’s attention from her duty driving driver. Her judged should be giving person any who is of other maimer as same operation the car. attention plaintiff was that while the defendant testified The any occupant of driving the car nor other neither he speed. upon His exact the defendant’s commented were: words anyone your any car make comment
“Q Did speed the car? about the to Janet “A No. you say anything to her ?
“Q Did about “A No. making any you But have no recollection of
“Q speed? comment to her about “A No. any any
“Q Did the others make comment speed? her about my knowledge.” “A Not to engaged in the defendant conversation while If any way driving, other diverted or in her attention duty, escaped her It from fact mention. is true plaintiff that the “It seems like testified, I said some- thing was a she there but knew it was curve, there.” question his counsel asked him another When plaintiff replied: something “I said about —I remember something about ‘be careful the curve’ or ” out ‘watch you for curve.’ Then he was “Do asked, you remember where it was when made that com- replied, Upon mеnt?” He I don’t.” “No, cross exam- just my he ination “but it memory testified, comes to something that I said about coming up the curve ahead. happened can’t But I remember what after that.” plaintiff no time any- undertook to mention thing happened from the time the car neared the *38 de- the plaintiff whether not asked The
curve. the curve. she entered when her reduced fendant plain- the Accordingly, the curve car neared as the un- something but he was curve” the about tiff “said happened How after that.” what “remember able to the scene of from beginning curve was of the far the by the record. not disclosed accident the everyone a a car with Possibly has driven who guest mention has heard his guest seat front in the highway intersecting a road, an road, a curve something sight else sign, car that is other some kind is engages of that attention. Comment the eyes guest their and driver have because inevitable sight. Surely, objects when the the road on giving that kind he is not comment of makes the plaintiff especially warning, as said when, not knew it was there,” is, she “but case, in this curve. pause brings foregoing us curve. We although we have used the words
to observe opinion than in this it “turn” more once “curve” and may in the road has received more the turn be that than it did in trial court court. attention in this police example, the above mentioned For officer, plaintiff request and at the for the of his witness presence upon large drew in the counsel, drawing paper a sketch of the scene of the sheet depicts It road, shoulders, accident. tele- pole phone with car which defendant’s collided, by skid marks made defendant’s tires and sets beginning in terms feet the forth distance from the pole the tire marks to the and from the latter to the car to rest. where came But, does not indicate turn nor the distance from where the tire marks had the officer began After the turn ended. to where drawing plaintiff’s completed addressed counsel his you put bim the curve is.” in where as follows: “Will way. up replied, is on this “The curve The officer in the curve.” He was not marks were not The skid begin- from the curve to the for the distance asked ning of the skid marks. any anyone
Neither he nor else made effort what- ever to show the distance from the end of the turn *39 seemingly escaped to where the car from the de- just possibly fendant’s control. The facts mentioned important indicate that the turn was not deemed as upon appeal. in the trial court as We mention that solely purpose indicating fact for the it is impossible to determine from the record how far the leaving ear had traveled after the curve before it escaped from the defendant’s control.
Up point approached where the car the curve plaintiff’s we have the operation, account of its but point from that on we do not have the benefit of anyone’s description place. of what took Both the plaintiff they and defendant swore could not recall happened what approached after the car the turn in the road. It must be remembered that the accident happen did not in the area plaintiff’s covered the description beyond but at some point. distance The record does not disclose the distance between beginning spot of the turn and where the car seemingly escaped from the defendant’s control. It is true that depiction evidence affords a wrought by destruction the car after pave- it left damage ment, since the inflicted may the car afford judging some basis for its we momentum, will give later that fact attention. original opinion fact that mentioned the
Our signi highway sign beginning the curve a near speed place 45 miles at that was fied that the indicated specially per hour. Mr. Justice O’Connell, accompanied original concurring opinion our opinion, stated: knowledge fre- that curves are “It is common negotiated safely speeds
quently at which exceed Highway Depart- posted by speed indicated ment.” observation that Justice O’Connell’s
We believe readily can If it needs corroboration well founded. just which was fact that the Graves car find it in the going approximately ahead of the defendant’s speed passed the defendant’s and rate of the same beyond through curve and the area without diffi- culty.
Although plaintiff, as a mentioned witness, sign and the which announced the indicated the curve per say speed of miles he did not that the hour, speed. may failed to reduce her It defendant be that presumption (OHS (1) (33)) is warranted 41.360 comply reduced that the defendant her with *40 the law’s but we will demands, continue to do as we original opinion in our did assume that the de- through drove the turn fendant of the road at about per specially concurring opinion miles hour. In his Mr. Justice O’Connell stated: recognize are entitled to rounding “We that speed twenty curve at a males excess of speed per indicated of 45 miles hour does not, high probability show there is
itself, involved of serious harm.” original opinion
It is as our clear, states, damage which the car defendant’s inflicted indi- considerable, traveling momen- with was- that it cates aware of no areWe the accident occurred.' when tum speed whereby can be deter- rate of its actual means photographs looking of the by' two mined part the record of constitutes car that wrecked taking But we are satis- evidence. the other note of speed considerable. have been must fied that its states: P2d 584, Jones, 683, 169 v. 178 Or Navarra testimony concerning gave no “The defendant driving. of speed There was, at which he the course, plaintiff’s concerning the nature of evidence plaintiff injuries, contended was some which the with the of the collision of the violence evidence some evidence culvert, therefore, concrete the insufficient and, But such evidence alone was car. gross negligence, much less to show * * speed. negligence, in the matter happened the fact the accident does Likewise, plaintiff’s charges. Simpson establish v. Hill not P2d man, holds: Or ipsa loquitur application. “Res has no Hence, presumption negligence no is created the mere * * *” happening of the accident. following The is taken from 61 CJS, Motor (3), page §511 204: Vehicles, ipsa loquitur res
“The doctrine of has been held presumption not be available to establish a or gross negligence, inference of recklessness, willful gross negligence misconduct, ton misconduct.” or willful and wan- was, plaintiff The the last witness who testified. following testimony: is taken from the close of his Gary, you “Q had ridden with her before, hadn’t you? couple
“A I think so, times. *41 you ? careful driver knew she was a As far as “Q “A drove around as I knew. as far We Yes, couple town there. a blocks in anything wrong with her driv- There wasn’t “Q particular you this ing concerned on far as were going you thought evening except was she too fast? little Maybe little too all. fast. that was Yes, “A nothing wrong wrong Nothing with the car, “Q highway or— surface of the weather or the with the knowledge. my Not to “A — way the car other she handled “Q or the going you thought was too fast? she than right.” That “A is epitomizes plain- testimony just quoted
The previous opinion points case. As our out, tiff’s entire feet). unusually (20 pavement was broad possibly photographs of it indicate that its surface was clearly anti-skid. Its line was marked with a center stripe. intersecting The record mentions no roads. plaintiff (who Both the defendant and was in the seat) night front were familiar with the road. The adjacent pavement was clear. The shoulders roadway dry feet were 4 broad. The and there sight except quarter was no ear the one a mile ahead driven going aforementioned Graves plaintiff the same direction. The stresses the im- portance of the curve. as we However, have said, degree evidence does not indicate the of curvature nor pavement does reveal whether was banked operation so as to facilitate the through of a car photographs curve. The which we have mentioned appear quite to show a gentle. curve The fol- lowing observation made Mr. Justice O’Connehl specially concurring opinion his remains true: recognize
“We are entitled to rounding twenty in excess miles aat *42 curve indicated per in not, does hour miles of 45 high probability a is involved that there itself, show harm.” of serious P2d 56, McKenna, 223 Or v.
Williamson a in which category of the circumstances contains against judgment may his guest non-paying recover opinion, given categories, in that as host. One must in- following: conduct “The defendant’s is probability degree harm will high volve a explains: opinion The result.” * *
“* probability harm re- will way saying another conduct is but from sult dangerous. not reck- is Conduct is that the conduct probability harm will result less unless * * * strong. ‘must involve an The conduct is bodily easily perceptible danger of substantial harm the chance that it will so result must or death and § great.’ 500 comment a. Torts, 2 Restatement, be happened Obviously something about the time that which confronted the defendant the car left the curve that she could not solve the avail- with a condition events move faster than the mental able time. When may ability place. the driver an accident take Pos- sibly, thought if the defendant could have faster greater experience had had if she as driver the unfortunate accident would have been avoided. passages just quoted
We believe that the which we applicable from the case are Williamson to this one. bring We are satisfied that the evidence does not this category quoted case within the above from the Wil- decision. liamson previous opinion.
We adhere to our Perry JJ., C.J., Millard, McAllister, in this opinion. concur concurring. specially J.,
O’CONNELL, dissenting opinion contains two Justice Sloan’s Begin- require suggestions judicial comment. ning hypothesis is that our statute with the judicially suggested that either it is we “unworkable,” entirely interpretation repeal its or leave statute jury. alternatives consistent Neither of these to responsibilities appellate an court. our with proper Unquestionably, fact it is for it is us, duty, repudiate principles of law our outmoded previous applied our announced and cases. But duty right repudiate have neither the nor the we *43 merely do a statute because we not believe that its application carry policy. would out wise The func- declaring policy through tion of of the this state law by legislature is the shared the courts. is It within power legislature the of the to limit the automobile recovery guest’s right of to cases in which the host- guilty aggravated type, driver is of misconduct of an may appeal and it do so for reasons which do not to us.
Perhaps say only the dissent means the legislature power through change has such but that legislative disappeared the reason has and the statute legislative has, lost its therefore, sanction. But we ground assuming have no legislature for that the re- gards guest the statute Considering outmoded. the great litigation volume of under the it statute would, strange assumption. be indeed, readily If dispose we can so existing of an statute by indulging speculation in the legislative the purpose many has been then abandoned, of our.statutes The consti- treatment. susceptible same are judiciary functions separation of tutional judicial contemplate such legislature not does and the egoism. guest suggests that statute if then Justice Sloan jury the permitted should leave to live we determining particular conduct whether
function suggestion, As I understand the the statute. is within longer guest to determine no cases would review we gross evidence to establish there was sufficient whether negligence. be For reasons need not recited would be unwise to I believe abdicate here, supervision jury accept our area. If we this give up that we Justice Sloan’s view should our control sufficiency over the in the determination of aggravated guest of evidence of fault cases, refusing would be there as much reason for to review jury’s determination where the statute is only question not involved and the is whether the guilty ordinary negligence. defendant was It is as negligence difficult to draw the line between and the absence thereof as it is to draw the line between negligence and reckless conduct.
The reference to Justice Holmes’ view is mislead- ing. question Justice Holmes believed that negligence should be determined the court and not jury. simply That theory his belief in a *44 respective judge of the jury. functions of and Know- ing that the contrary, law was to the he did as not, judge, upon taking insist over the function of the jury negligence cases. The dissent would make it appear that Williamson v. supra, McKenna, we adopted Holmes’ view. That is not so. In that case recognized proper we the jury function of the pass duty recognized to on the court the
we also warranting sufficiency the submis- evidence ag- question of the driver’s to the sion duty perform impossible gravated to is fault. It ordinary ag- is made between division unless attempt an was made gravated In ease fault. maldng division. for basis a useable to formulate adopted in the Williamson solution that the I believe guest judicial repeal preferable to the case part of function of of a our or the abdication statute suggested guest in the cases, review alternatives In do not believe that we I fact, Justice Sloan. judicial responsibilities we were meet our if would adopt either alternative. opinion. concurs in J., this
Perry, dissenting. SLOAN, J., participate For reasons not did not material, I v. McKenna, the case Williamson decided June 22, express I my 223 Or 354 P2d could 56, so not opinion. difference with that In basic instant case majority apply opinion. now the Williamson Since disagree with the result I reached in case, this as well opinion Williamson I take case, this opportunity my express reasons In therefor. this opinion “majority” when I refer to the it will be in opinion reference to the Williamson unless otherwise specified. opinion filed Justice O’Connell reflects
the exhaustive research
and effort with which the
opinion was written.
I have no desire to criticize scholarship.
result of that fine
my
Bather,
difference
judicial philosophy
is in the
applied
to be
singular problems presented by
cases.
I
attempt
would not
gross
to re-define
negligence, etc.
*45
to the idea
direct attention
want
to
I
Instead,
con-
that we should
so unworkable
is now
the statute
Ganiere,
v.
Perozzi
330,
149 Or
1935,
overruling
sider
accomplished,
If that cannot be judically
The difference I have with the on the majority function of the has been earlier jury by expressed far others wiser than I. It can best be by illustrated the readers’ attention to a drawing small part found at 2 comments and Harper James, Torts, pp on the functiоn of the in 971-972, court negligence cases. Irrelevant footnotes have been omitted.
“* * * there has been a substantial school of in tort thought law which favors the progressive out of working detailed minimum and maximum standards of conduct as situations continue to recur and become crystallized. This is to be done is proper. › court out of judicial notions of what The chief exponent this position was Mr. Justice [sic]. fi Homes for it is that argument the community his he necessarily a fluid point of view in which he is able to rule without it desirable on the same question regarded as prudence the common opinion, clear one which would bility. For when the continually should be able to Steinberg, different occupations circumstances. also be of a different opinion, and, because the case is not clear, hold that ordinary opinion measuring › “ fi " ‘A See, standard of experience of what a reasonably prudent man judge growing.’ Mich. e.g., fixes in his own mind the standard the plaintiff’s makes his own He thus lead and to instruct who has Holmes, The Common Law 110 et seq. prudence ordinary expressed whole to take their opinion. proper care. The next of society, and a definite rule of law. judge Holmes, The Common Law 124 he justify might long instances enables him to were submitted decides that a want of conduct by the court (1868): sat at Judge find them perhaps better competent taking far better them in nisi ‘The Cooley would be opinion of what that, prius taking represent judge case, their differing to a It is ought detail, turns him out of court upon than an ought gradually however, must be a very Detroit & M.R.R. v. Van trying Furthermore, upon itself this responsi opinion quite jury due care is not to have done under of ordinary prudence, even where he thinks the common sense of with him as to the (1881). possible that collected from the (1881). a similar case may average jury. at all should be A generally different judge acquire shown, sphere if the He experience judge' give greater and acumen of the sounder, determining
him what has for basis than men are that if further, done and, should'be may advance, may they just not do, told in what uncertainty inhibiting' will be removed fear of block way stumbling affirma- of desirable *46 activity. is clearer when moral fault Moreover, tive there has been disobedience than instruction to a definite simply use a man has been told to his where agree judgment that he reasons are- bound peril at will later that some wisely. apparent It these so that -did principle up with the fault and expediency to refine and notions of the desire with it, with as we have But, seen, associated laiszez faire. specific setting large the to restrict of standards tends and liability accident to work and, therefore, against compensation of the wonder, then, accident victims. It that is small become ground Holmes’ view has never widely accepted by the courts and has lost years. recent expansion, Gauged by rapid explosion, almost negligence Cooley the automobile law since of stage, philosophies they on the diverse Holmes were origin. divergence expressed almost are of ancient The fully today. of view as alive is, however, Further exploration upon subject into the vast literature this would waste the of time both the writer and the reader. Harper p seq. Reference to James, et analysis provides of and citation to some of the com- prehensive subject. works on the majority now choose to follow the arrow erected History Holmes. indicates that when the courts adopt particularized more standards, more limited which, question, a to be of fact the first to has ruled be one Indeed, of law. I think cases are not so numerous as has supposed been sometimes judge a liberty which negligence negligent could feel at question to take the the plaintiff’s jury. away from the . . . The difficulty in these cases of injuries is, injuries it very seldom happens repeated are circumstances; and, under the same therefore, no common standard of con- ” by prudent duct men becomes fixed known.’ jury. fear that time I function been the has despite exertions the consecrated will reveal that, template with which to devise Justice O’Connell, guest con- court will in a this case, to test the facts jury. weigh have New words the facts as tinue applied be the result will the situation but been my disagreement by express I can the same. best opinion philosophy saying am of the firm I Cooley provide more often essential will Justice justice. particularly recognize,
This is true when we majority acknowledge, that trial courts for- have mulated instructions in the cases which have jurors’ left little doubt most minds as to the burden plaintiff judge sustain. must And the trial has not only heard the has evidence, but observed the wit- advantage nesses—an we elsewhere consider. Accord- ingly, exceptional it should be an case indeed when *47 finding this court will review the of both the trial judge jury. and the
My objection second opinion to the Williamsоn re- quires explanation. more detailed When the court again language undertook to define the of the statute gone we very should problem have root of the it has (see created. Most of the 27 state courts Note, 2,1957) 34 Ind L n guest J 338, saddled with a statute of some form inability have conceded an to conform requirements to respective the of the requires acts. It no application seer to know that the of the statutes injustice. has resulted in manifest Neither does it require exposition, beyond to mention, describe the revolution in motor period vehicle travel between the years 1927-1935, guest which most of the statutes were enacted, and 1960. This revolution has judicial proscribe notice as to subtle been so
not majority appear that we believe to Yet the thereof. setting act in the 1929 to look at continue should if decide, we should think enacted. I it was in which was en- purpose the statute for which we can, prevent designed any it was mischief and acted light. respect to this With the statute and test jurists, both courts and postulate that the am aware I widely divergent opin- adopt historically presently, and power extent and the court as to both ions may legislative act. See review a court to which Materials on and other Cases MacDonald, Bead (1948). Legislation, ch 7, only fair it seems not instance, however,
In this many relationships all to ask: essential Of but why by motor vehicle travel, activities created penalize legislature single person out to should act than to enter the motor no other who commits salutary of host so another? Was status vehicle of opprobrious protected and that of the invitee so as to be legal rights? of basic as to warrant restrictions we cannot avoid some answers these I think self-imposed statutory questions. con rules prevent McKay it. et do not Peters al v. struction seq., et et 195 Or 238 P2d al, 1952, appears legislature also P2d 585. It when the normally powers judiciary, acts to limit exercised deprive existing rights, and to citizens of the courts only power, duty have not but the to examine the care. ‹ greater particularly act with This should be purpose true when it can be shown that the and result deprive act was to one class of citizens *48 existing rights of common law for the economic benefit of another class.
‹ Cooley’s Limitations, V, (8th Ed, 1926). Constitutional ch guest prompted of the the enactment statute What in this as well as other states? history ‘guest “The of the law movement’ vague, probable
quite but it seems that sometime prior in which there arose several cases generous having a a offered a ride to friend driver, suddenly stranger along highway, or a found on in a case that turned some himself defendant question simple negligence. clear of “No doubt there cases where there were also guest in collusion host and the between the liability upon order to fasten the insurance com- pany by which the car was insured. quite probable “It seems that some executive large company
of a
of ‘cases
either was a
insurance
looked over the list
year.
paid’
Probably
he
end of
member
bar or had been trained
large
in the law. When he observed the
number
plaintiff
of eases in which the claimant or
had been
guest
he
the idea of a statute
car,
conceived
‘simple negligence’
that would rule out
in all such
company.
cases
thus reduce the
of
risk
his
He
wrote to an insurance commission or the commis-
grew.
sioners of several states. The idea
In 1927,
* * *
guest
Connecticut enacted the first
law.
insurance
there were
filed
the enactment of
((#
through
duced
“*
sfc
up
by guests picked
[*]
*
their efforts
almost
company
many
During
* &
hitch-hikers and
every
guest
officials became interested in
guest
state.
statutes,
depression
on the
law bills were intro
* * *” ›
many
highways.
actions were
after 1929,
primarily
All
Supreme
The United States
Court found itself not
increasing frequency
litigation
“unaware of of
Reno, at the Fourteenth Annual
Nevada, Insurance
theory of the conception
upon his
assumed that
of Massaletti
states had
›
1954 Ins L J
imagination.
Counsel.
adopted
v.
the executive’s
Fitzroy, 1917,
I
do not know to what extent
The source lends some credence to Mr.
and'
a paper
statutes.
knowledge
birth
given
Mass
by Clel
Convention
guest
In other words, if the evil to have been eliminated readily apparent restricting fraud, is liability prevention does not cure vice. The proper public policy. fraud was And it should not Malcom, Law, 1937, p fi Automobile Guest 3. any- inferred, say here that there was I
be what pro- design companies thing improper that the from fraud. The trouble tect themselves apply adopted a more fit the disease. To did not cure liability guests stringent all had for hosts and test relationship fraud. much no reasonable It would be prescribing The act like castor oil for broken bone. persons treats all who ride in another’s motor vehicle per gets mala se. The result is that court no *50 any help attempts purpose policy if look it to to or construing Obviously, to the be served act. the give guest an court cannot instruction that the act only apply parties guilty will when the been of have conniving. required, The courts have been therefore, try to and later discard numberless definitions and by guest apply which standards to the acts. In final analysis each definition has been a use of the same words in different context or or order different words largely having synonymous meanings. Each such at- tempt and large failure court has been caused, part, by guest the fiction that a so-called in an auto- penalized, mobile should be but the reason therefor relationship had no to the status of the actors involved. guest If the “aim” of the distinguish statutes was to between the guest, honest and dishonest it is difficult purpose to see how accomplished. has been It would any be difficult to statutory find similar scheme righteous punished where the equally are with the equаlly sinner. It would be difficult to find a similar legislative situation in which action has no direct relationship purpose to of the statute and evils to be eliminated. problem applying
The such “gross words as negligence”, “wilful and wanton” to solve this dilemma has been in a described, somewhat facetious vein, writing a hand lawyer, David M. Bnrrell,
an Illinois subject lawyers of “A on the trial for Illinois book Approach Wanton to the Problem Wilful New fl Misconduct.” judge experienced has evolved “One trial theory epitomizes hopelessness of our may technique. ‘Oh, be called It traditional my theory and wanton misconduct. of wilful God’ theory simple: application while If, of this listening of the acci- the facts to a witness recount gripping judge the arms himself finds dent, my saying God, himself, ‘Oh, to of his chair you and wanton. is wilful didn’t’ then conduct clearly, candor this has the virtue view Quite and disadvantage hopelessness for, as upon prediction it and the the be based no can latter, best judge slip argument be to defense would for the is im- hand, other
a sedative. theOn possible the ornament of words that to read the welter subject opinions on this without traditional they consciously unconsciously, concluding that, judicial merely process, what- to obscure the serve may be.” ever resulting of the confusion am convinced that much I inability from from the statute stems our *51 by purpose be the real intended to served consider why This is one of the reasons the statute. we should nullifying the consider act. pur- the other we hand,
On if consider that the pose preclude person “biting the to of act was from closely that hand feeds” then him, the we should more person riding examine status of the in another’s being car to make sure that the rider is fed realistically And that applied host. test should more be today’s to the facts of motor vehicle use. probable
In it many short, that in 1929 fl L 1949 Ins at p 723. J. more were of another vehicle entered the who
persons Today, invited guest. a true gratuitous to he likely the highways freeways, we all know that however, areas, metropolitan more providing approach each of hours given streets are city clogged and mothers ride, pooling workmen day sharing with of recrea- and places cars to haul children to school the traffic problem teen-age tion —no small of part — and busi- recreation, rides school sharing youngsters to mutual engagements ness associates rides sharing for the of all in the judges convenience equal car, lawyers bar Today rides to sharing meetings. cost, distances involved from of residence greater place of and traffic place work to name congestion, only a few of the in all causes, citizens walks of compel life ato combined use of automobiles as an accepted part neighborhood, business, particularly, sub- life. We urban, cannot these ignore facts.
Further, exemplified by the instant case, use of growing automobiles children of high school age is, course, now A widespread. rarity 1929. Yet when a group high school children enter a car, as in this case, purpose is usually one of greater benefit or pleasure to the host than to the guest. If the issue had been raised in this case I doubt could be said that plaintiff awas in the car in any actual legal or factual sense of the word.
I recognize the matter of defining a guest was not in issue in the Williamson case nor in the instant case. I think However, that we must face the fact in people use automobiles have themselves altered the status of many vehicle passengers beyond of a concept guest in the more strictly legal sense of the word. It would seem to me that we would defy *52 tangible require of form
reality to some if we continue distinguish guest and a a between to consideration passenger. (cid:176) people opinion would that am of the I legal explanation of the with an confused more be they guest than would be concept an automobile of gross negligence, should etc. We of definitions with much of has become as recognize the automobile that today’s requirements of business tool an essential An auto a farmer. a is to as tractor life and social longer all that be as land and treated can no mobile peril. trespassers do their and so at are therein enter wholly are of artificial which associations “But-moral by goes yield on, culture intellectual creation, when *." – * * dissolving analysis degrees of to force If act that come to is: issue I basic appears and unworkable in as it to be, has become, so. † We say application, capable we should of sensible legislature a to relieve for harried not wait should an courts the state of intolerable burden injustice justice. recognize in more than I as results fully my by action a court must as brethren such only therefor taken when reasons are conclusive. be interpretation an “But the dilemma between that leaves moves we have Harland The Western Tradition, suited to the analogies L R be may leave the law unsettled, cedent retrospectively * * *” Cardozo, The Nature of the Judicial Process, quite extension 4, p † From (cid:176) – untrammeled “* * * "* * * “* no different F. 9. eye Stone, * * Law performs customs or of morals, or collision between resemblances way of a a in the exercise for what treatise No doubt If we search the from precedent The Common life of a any 1959, pp 542, 552. fixed principles. is going there which the John people. sets of facts on ini the world Law in the United its will serve Stuart cast precedents power function field within which precedents * * duty Mill, Obscurity frankly whose *” upon so reprinted a adequately superficial ibid., about intent have considered social the courts legislative of statute States, p.ll. 1921, p 128. some or all of them, us, upon judicial implications may only it is justification part to declare in function. easy when or of pre judgment past [*] Weber, Harv [*] it find for *” is *53 and obedience to the dead legislature, policy ‡ remains.” an outmoded provision hand of it much to who must hope courts, “Is too from the in order often take over this function of utility to the social proper weight to give harm to threatens undoubtedly conduct which interests of will realize others, legally protected an are administra they exercising in so doing, that, tive decisions are like not, function and such and those declaring prin decisions construing their to our are fundamental concept law, ciples re-examination from judicial change sacrosanct conditions?” · changing under v. Jaloff, 1925, West In 232 P 184, 642, Or ALR Justice McBride had this to say Chief a somewhat similar statute: about “* * * construction This takes from away a good remedy an common-law for injured person aby a committed citizen and private injury private him remedy an emasculated wholly gives inadequate conditions. if many under the section Perhaps, construed as referring should be the criminal of the it be liability driver, might upheld. But ever cases of [citing has been the cases] since of this state that the common-law remedy settled law inflicted could not injuries for be taken negligently some other efficient providing without away remedy * * in its place. that we should view examine the guest my It is by today’s if tomorrow’s to see standards statute an any longer provides “efficient remedy” the statute law it abolished. rights the common And if for it is overrule Perozzi v. cannot now found this court Ganiere, supra, then we should more consistently leave determination these cases to the jury. 111-122. · ‡ Friеdmann, Bohlen, Mixed Legal Questions Theory of Law and (3rd Ed) p 304. Fact, Penn L R, pp majority respect have to the instant case the In adopted applied one of tests Williamson now rehearing supra. opinion McKenna, The on this v. categories, given says: in that of the case “One following: opinion, [Williamson] ‘The defend- is probability high degree must involve ant’s conduct ” opinion will concludes that that harm result.’ encompass high defendant’s conduct did not de- gree probability original harm. Neither rehearing upon opinion on indicate what nor one judgment conclusion reached; basis this what high or intuition court decides what creates probability of harm. *54 unexpressed assumption
The to be seems that the running rounding risk of off of the road while curve likely high speed produce injury is less serious negligent than driving pulling some other form of — pass of out of a line traffic another for ex- car, ample. going Facts are if we available, are to con- dispute majority’s sider concept facts, of safety. as to the Statistics causes of accidents involv- gathered ing by fatalities have been the state motor department years. for vehicle several Statistics for year interesting, reveal some striking, if not comparisons may as to the relative harm that result given highway from kinds of Assuming accidents. incidence that the of death is a fair criteria of risk we find of in harm, that, 1959, 117 deaths occurred in accidents classified “Ban off road.” com- This pares resulting with 68 deaths from “head-on” col- appears lisions. It that 192 resulted deaths from compared resulting one-ear accidents with 143 from gathered by accidents. collision Statistics the National year Safety the same per for reveal Council that 40 highway deaths resulted from cent of total “collision an cent resulted equal per motor vehicles” of roadway.” Deaths resulting only “noncollision, from caused cent of total per “car curve” high- from off to 20 in cent caused comparison per deaths way sideswipe.” “head-on not be but may they compilations conclusive,
These estimate than someone’s as to are more persuasive in results the more negligent driving form of what around a apparent driving harm. It serious is one of the curve with excess most frequent death. It creates belief that causes of conduct instant the defendant in the case did create a “high that harm would result. probability” degree If had the original I consideration participated I would have joined this сase dissent of in the J. I do dissent of join present Habéis, Wabnee, should be affirmed. judgment J.
WARNER, J., dissenting. sit when this matter
I did not was first heard by of this Had I January year. the court done I so, then have joined carefully would considered J. pro tern., Burghardt dissenting opinion Harris, Watson, 223 Or v. 349 P2d 792, 804, which has force original of its reason of the lost none rehear ing. objection last
My majority prime opinion, *55 to the is first, feeling well as the as result majority reached attained to failing is apply long certain established and universally recognized rules, particularly those when the applying appeal of a denial is from motion for directed as verdict, here. of gross negligence the issue
On
we are not per-
but are
weigh
evidence,
to
mitted
limited to re-
viewing
solely
purpose
determining
for the
gross negli-
whether there was substantial evidence of
gence
disregard.
or reckless
Johnston
Leach,
v.
(1953).
Or
This review of that record is majority reading: plaintiff statement, “The driving the defendant was that while testified neither occupant any other upon the car nor he commented *56 if speed.” is correct The statement defendant’s impart that no one the idea to intended it is rate in terms of its to made reference car per traveling given hour. But, of miles number as convey impression is intended if that to statement uneasy possibly indifferent plaintiff was not traveling then silent, and sat was the rate defendant clearly urge erroneous. This is a conclusion is I such proper its context the when we restore to made evident testimony upon plaintiff’s quotation relied frоm majority support quoted of their conclusion. I do: This now you the road towards— came down
“Q Now, Gary, you you got did to this ever curve, before have occasion speedometer at on to look car? [Gary Burghardt] Yes. I looked at the
“A speedometer. you sitting you were would
“Q And from where you I will ask where was it first, tell — you way looked at it or was it all the first when the road? down
“A What? way all the down the road from “Q Was it you glancing had Corner been at Blackman’s speedometer? happened and on. in awhile I “A Just off Once right. towards the that it was over to see right. Is that toward the kind of “Q Over straight speedometer moves in a line across? say. “A I couldn’t right? it was over to the But least
“Q way it looked to me. That’s the “A you remember where the last time Do “Q speedometer? you noticed the Where were when you you with reference the last time to this curve speedometer? noticed the yet “A hadn’t come I We when noticed the speedometer. *57 you jury your “Q Would tell the going estimate of you
how fast were then? say “A I would at least 65. anyone your “Q At least 65. Did car make any to Janet about the comment the ear? “A No. you say anything “Q Did to her about
speed? “A No. you going “Q Did thimk that she was or fast
not? thought say “A Yes. I she was but I didn’t anything just I because didn’t want —I don’t know, maybe go she wanted to fast and I the driver wasn’t say anything. and I didn’t think I should you any any- “Q Did have conversation about you thing up you came to this curve? Do remem- anything you talking ber that were about? particularly. “A Not anyone, you anyone, any Did “Q make com- coming up ment to her about curve ?
“A Just that she knew there awas curve com- ing up, say anything I and we didn’t think, any would reason for her have to be excited or make just tromp something her on the brake or like that. anyone any Did
“Q make comment to her about coming up, say anything the curve was to her about it? something
“A It seems like I said there but she curve, knew it was there. you you do “Q What remember that said? something “A I said about —I remember it was something about ‘be or ‘watch curve/ careful of out the curve.’ for for the curve? watch out “Q Or yes. curve; “A watch out Or for you you where it was when Do remember “Q made that comment?
“A I don’t. No, any yon making have no recollection of But
“Q speed? to her about comment “A No. any any make comment to
“Q Did of the others speed? her about knowledge.” my (Emphasis sup-
“A toNot plied.) juncture G-aryhad testified at a
After the cross- memory that it came to I examination “that said some- coming up thing the curve he was ahead,” about asked: you just you vague? Are sure or is that “Q did, I “A That’s what remember I because was kind *58 about it.” of nervous majority respectfully that submit evаluation
I of plaintiff’s testimony portion exempli- of limited so particularized judicial a too but unconscious en- fies prerogatives jury upon the of the and a croachment long departure pre- from the established rules too far viously to. referred foregoing testimony plain- extracts from the of only my opinion, not warrant inferences on the
tiff, jury part that defendant’s car within of the the mile traveling approaching the curve was “at least 65” per plain- as it neared the and curve; hour that miles speed apprehensive about the and warned tiff was de- notwithstanding careful but that she, to be her fendant knowledge signs personal advising previous of the heedlessly proper rate, continued miles her danger abating speed and course of risk -without traveling. was then she majority opinion In reference to the curve the # # point [the curve]
states: but from this on any description we do not have the benefit of one’s of place.” respectfully what took I This, is not submit, ignores an exact statement. It what value the might properly testimony attach to the of the witness .Graves as to the of defendant’s automobile be up while in the fore, curve, moment of the unfortunate accident. learn
We from the record that somewhere near driving Blackman’s corner and before the mile inter- vening point occupants between and the curve, nearby car hailed another Olson automobile passenger, Donald driven Graves with a both apparently Gary. stop, friends to a It came where- Gary upon momentarily left defendant’s car and went car over Graves’ where he had a conversation occupants with the automobile and returned shortly place in to take his defendant’s automobile. Upon leaving, the Graves car first and went was fol- Gary’s lowed as she defendant, and, testifies, request. arrangement The reason for this is not re- any importance nor is it of vealed to our understand- ing. testimony is evident from
However, passenger follows, he and his Graves, were progress from thence forward interested in the quar- car which was defendant’s behind them about “a *59 ter of mile.” leaving you After Blackman’s did “Q Comer you?
notice their car behind [Don Graves] “A Yes. noticed We the car. “Q about how far Now, ahead of them were you, happened? Don, when the accident judge quarter
“A I Oh, would of a mile. Somewheres there. you headlights your
“Q Could see their rear- view mirror?
“A Yeah. you jury can tell
“Q Now, whether or not appeared gaining you just she to be on аbout steady holding or what? say “A I couldn’t Well, for sure but I was do- ing maybe up keeping about 55, she was might gaining. with me. She have been I couldn’t say. quarter “Q You were about of a mile ahead? “A Yes. you going
“Q Could have been a little faster than that? going.
“A is what 55, 60, I was you “Q That’s what think?
“A Yes. you anything, your
“Q What did if notice, rearview mirror at happened? the time the accident anything boy
“A I didn’t notice but the with me he said noticed— object
“MR. I GOODWIN: to that. “THE COURT: Yes. You musn’t tell what somebody else said. (By Jacobs) you “Q Mr. At least understood happened?
that an accident “A Yes. you
“Q did What do ? “A We turned around and went back.” testimony From this was entitled to infer occupants that the following Graves’ car were closely continuing with interest, whether aid *60 mirror or otherwise,
of the medium of the rearview progress from its de- the of defendant’s automobile through parture curve and at Blackman’s the comer, highway point and close to the where it left the were enough happening the accident, to it to notice the whereupon, the car “turned around and went Graves’ part on back.” The observation of defendant’s car the relatively companion and for Graves his was elapsing departure short time between the of the two cars from Blackman’s corner and the occurrence of the mishap, speed only for in terms of miles could have plaintiff’s traveling been but a few if minutes car was speed by plaintiff at the testified to Graves. jury justified concluding testimony from Graves’ plaintiff including traveled the entire course, speed distance while on the at a curve, of “about 55, maybe per possibly 60” miles hour and faster. majority opinions following
Both of the the first hearings question speed and last seem to that de- traveling, sharpness ear was fendant’s of the curve, and whether or not defendant was on the curve when highway. car her left majority opinion
I note the last the car traveling “was with considerable momentum” and “that photo- must have been its considerable.” The (Exhibits 4), graphs copies of which are an- Judge opinion nexed in his dissent Harris majority opinion, portray beginning to the first says photo- He then and end of curve. from these graphs jury it is submitted the could find that “the sharp one.” I curve was concur in that conclusion. illogical equally That it is not an observation and was jury knowledgeable to the is conceded the defend- says: in her brief “The who accident ant, occurred just beyond sharp curve which is shown in Exhibits (Emphasis supplied.) 3 and 4.” question
As to the whether car was on the curve highway, when it left it is submitted that a might point departure well have found that the car’s place was at a in the curve area examination of graphically Exhibit 3 which notes the location of the telephone pole that defendant’s car broke in two and from thence noticed that 113 feet east therefrom, *61 by graphic drawing (Ex- shown the State Policeman’s 1), point hibit awas where the car started to skid on the curve. specially concurring opinion,
In his Mr. Justice observes: O’Connell difficulty finding
“There is no that defendant approached conscious of risk when she previous particular curve. Prom her use of the highway she knew that the curve was there, its speed by highway character and the indicated sign speed negotiate as the safe to the curve. * * *” Burghardt supra (349 v. Watson, P2d 803) I To this would add that in addition to her own
knowledge personal of the curve and consciousness of equal personal knowledge was the plain- risk, of apprehensions by tiff who made warning his articulate speed words bom of his concern because of she traveling. was then foregoing quotation opinion
The from the of Mr. immediately Justice O’Connell is followed statement: * * ingredient lacking which is is high degree probability that serious harm of knowledge
would result. It is common that curves frequently negotiated safely speeds are highway posted by speed indicated exceed the department. recognize are entitled to We twenty rounding speed at a miles excess curve per does indicated of 45 miles hour of the high that there is involved itself, show not, *# *” probability harm. of serious reasoning My point departure from the of Jus- in his statement as to the is embodied tice O’Connell “high degree probabil- ingredient of a want of the undoubtedly ity It that serious harm would result.” experience with ears of true that certain drivers might successfully at times certain kinds sizes equal negotiate speeds without hazard at the curve greater on that or than that traveled defendant knowledge of the success of others occasion. But that mitigating as a factor and should not be invoked cannot applied in all such warn- to be cases where standard signs ignored. respect, ing Each in this case, are light be evaluated circumstances should jury, I that case. contend that the not the existent in make that evaluation. should court, meaning warning signs purpose and is the What approaches of curves if not near established *62 they convey drivers that will assume a to automobile high degree probable harm of serious to themselves they any greater travel at than the indi- and others if portion highway speed the of the so marked on cated designed flagged? is the value unless as Wherein or driving potential and its to reckless an avoidance dangers ? rendering legally placed the not the court warn-
Is ing signs as an effective means of innocuous thwart- minimizing obligation ing highway and the disasters of injury passengers to avoid to their drivers and all approval by adopting with the conclusion of others
233 successfully possibility that the of Justice O’Connell by speeds greater rounding at than indicated a curve warnings signs in itself does not show there the probability high of not the harm? Does involved signs majority’s in such this matter accord to failure significance possible fullest devices com- their manding warning of their intended run observation Turner, of Mr. statement afoul Justice Brand’s McCready al., Adm’r v. et Or P2d says: (1950), where he “The element of reck- may, some circumstances, lessness under be inferred light the evidence of driver’s conduct in the of from what he must have conditions known.” teenage impru- conduct an Here, driver’s was willingness passengers to risk dent harm to her unsuccessfully betting, speak, judgment so to her safely speed travel could the curve at a she miles against judgment greater the considered of state au- sign thority, warning as reflected its that such high speed degree probable involved a risk of dan- ger. warning the visual Moreover, state amplified by cautionary at bar case words of plaintiff. usurp jury,
I would not the functions of but I enough cannot avoid the observation that there was justify jury’s evidence to material inference that easily defendant’s conduct perceptible involved dan- gers bodily of substantial pas- harm death to sengers operation her automobile and that her proceeded car her would so if result she around curve finding was warranted in traveling, gave she was and her conduct a fool- hardy or “don’t care” attitude hence the color and gross quality negligence. suggest any
I do not mean to one of the fore- *63 warnings plaintiff, speed, going and i.e., elements, familiarity highways signs, with road defendant’s diverting possible conversations, etc., and and curve, finding gross justify separately, would taken represent negligence; that taken in combina- I do but they jury question presented a as to whether the tion indifferently negligent grossly and un- defendant was McCready Turner, all Adm’r v. der the circumstances. (190 54); supra Nash, Burrows v. al., et Or Or (1953). P2d 107 123, 259 114, apprehensive I am that the evaluation of the evi- by majority dence tends to dilute much of the force opinion Mr. Justice value of able O’Connell’s v. McKenna, 22, 1960, Williamson decided June P2d I Or indi- subscribed, again unduly danger trespass- cates that we are ing upon province gross reserved negligence cases. judgment
I would confirm the circuit court. joins in Mr. this dissent. Justice Sloan