Dare v. Boss

224 P. 646 | Or. | 1924

McBRIDE, C. J.

The testimony as to Little’s exact status in the company is very contradictory. A written contract between the defendant company and Little was introduced, which upon the face of it shows that he was employed to sell cars upon a commission; the company being under obligation to furnish him with gasoline and such things as he required, but not obligating the company, so far as it appears, to furnish him with a car. The testimony indicates that he was not to receive any compensation excepting on the condition of making a sale. There is further testimony to the effect that the company did not profess to direct his movements while he was engaged in demonstrating, and that, with the exception of acting as a salesman on a commission, the company exercised no control over his movements. But the written contract is not, as between the company and the plaintiff here, conclusive, however strong it might appear to a person simply depending upon it for information as to the status of the parties. The fact that Pridgeon was driving a car with a dealer’s license on it in the name of the defendant company, and the alleged admissions testified to by members of the company that Little was demonstrating for them, are some evidence connecting the company with the ownership of the car and tending to indicate the relationship of master and servant between the parties. However weak this testimony may seem to us it was sufficient to go to the jury, and we think the motion for nonsuit upon this ground was properly overruled.

The objection that plaintiff was guilty of contributory negligence, as a matter of law, while plausible, cannot be sustained. Section 19, Chapter 371, of the General Laws of Oregon for 1921, at page 712, contains the following clause:

“ * * No vehicle shall be parked upon the main-traveled portion of the highways of this state; provided, that this shall not apply to any vehicle so disabled as to prohibit the moving of the same.”

We find no definition in the statute of the word “park,” but we take it that it means something more than a mere temporary or momentary stoppage on the road for a necessary purpose. Neither do we understand this statute to require a person to incur any chances of any serious injury by removal of a disabled car; but in such case, if the testimony indicates that such removal would incur danger to the person occupying the car, there is no hard and fast rule requiring him to take such chances. The “rule of reason” applies here, and if it should have appeared to the jury that he could have moved the car safely he would have been guilty of contributory negligence in failing to do so, but unless the testimony is uneontradicted the court should not hold that stopping to repair a temporary disability is contributory negligence as a matter of law; and especially is this true in a case where it appears from the plaintiff’s evidence that the party injured had left ample room to pass and by his lights had given ample warning so that there could be no plausible excuse for running into him. We do not think, as a matter of law, the court could say to the jury that the plaintiff was guilty of contributory negligence, but properly left it to the jury to find on this subject.

But there is one proposition that makes it necessary to reverse this case, and that is the fact that the jury, in effect, has found Pridgeon, who was driving the car by permission of Little, not guilty of negligence in crashing into plaintiff’s car, or at least has failed to find on that subject. There could be no negligence except that imputed from the relationship of the parties and, unless Pridgeon was negligent, no negligence could, under any circumstances, be imputed to the defendant company. That is to say, if the collision was without negligence on the part of the driver of the car, it could not be negligence on the part of anyone else. To say that Pridgeon was not negligent is to say that nobody in charge of the car was negligent, because it was his hand steering the car, and whatever injury occurred, if any, for which anybody was liable must have been through his agency; and this is sustained by all of the authorities: Childress v. Lake Erie etc. R. Co., 182 Ind. 251 (105 N. E. 467); Webster v. Chicago, St. P. M. & O. Ry. Co., 119 Minn. 72 (137 N. W. 168); Rathjen v. Chicago, B. & Q. R. Co., 85 Neb. 808 (124 N. W. 473); Loveman v. Bayless, 128 Tenn. 307 (160 S. W. 841, Ann. Cas. 1915C, 187); Emmons v. Southern Pac. Co., 97 Or. 263, 296 (191 Pac. 333).

For this reason the judgment of tbe Circuit Court is reversed and a new trial is directed.

Reversed and Remanded. Rehearing Denied.

Bean, Brown and McCourt, JJ., concur.