At the conclusion of plaintiff’s case in chief, defendant moved for an order of dismissal and nonsuit against the plaintiff, which the court refused to grant, and at the conclusion of all of the testimony defendant moved for a directed verdict in his favor, which the сourt also refused to grant, to which rulings exceptions were allowed.
Defendant contends that the court erred in refusing to grant defendant’s motions for an order of nonsuit and for a directed verdict in favor of defendant upon the ground that the testimony сonclusively showed that the plaintiff was guilty of contributory negligence. Defendant asserts that plaintiff operated his automobile in excess of fifteen miles an hour during the last fifty feet of his approach to the intersection of East Fifteenth and Claсkamas streets and while traversing the same.
Miss Peterson, an eye witness for plaintiff, testified as follows:
‘ ‘ A. Well, the Davis boy’s car was coming south on Fifteenth, and I saw that car first, but didn’t see the *245 other ear until the Davis hoy’s car was — well, he was almost — I guess he was almost tо the intersection when the other boy’s car shot out; the Davis boy’s car was already in the intersection before the other car and the Packard hit the Ford about — well, quite close to the middle of the intersection there and swerved over to the sidewalk and ran up on the sidewalk.
“Q. What car run up on the sidewalk?
“A. The Packard.
“Q. What would you say as to the approximate speed of the cars ?
“A. Well, the Ford was going I should think between fifteen and twenty miles an hour, not over twenty anyway, more likely to be about fifteen, and the other ear was gоing at a much greater rate of speed, probably going thirty-five or slightly less than that.”
Plaintiff testified on cross-examination that when he reached a point about seventy-five feet from the intersection he slowed down to fifteen miles an hour, but before thаt he was probably driving at the rate of twenty miles per hour.
The question for the jury to determine was whether Miss Peterson was right in estimating that at the time plaintiff “was going, I should think between fifteen and twenty miles an hour,” or whether the plaintiff was correct in saying he slowed down to fifteen miles per hour, at a point seventy-five feet from the intersection of the streets. Miss Peterson later in her testimony corrected it by saying plaintiff more likely was proceeding at the rate of fifteen miles per hour.
In
Olds v. Hines,
“We remember alsо that it is*a binding principle that the plaintiff is entitled to the benefit of whatever his testimony tends to prove, although his witnesses *246 may contradict each other, and that if any reasonable construction of the evidence on his behalf, or any part therеof, shall fairly tend to show that he is entitled to recover, it is the duty of the court to submit the question to the jury.”
While plaintiff was driving in the intersection it appears that he was forced to act in an emergency and increased the speed of his car in an аttempt to dodge defendant’s car. When a person is suddenly placed in a position of Imminent peril, without sufficient time to consider all the circumstances, the law does not require of him the same degree of care and caution as it requirеs of a person who has ample opportunity for the full exercise of his judgment and reason:
Goebel v.
Vaught,
The court submitted the case to the jury on the theory of emergency by proper instructions. We think the question of whеther plaintiff was guilty of contributory negligence was for the jury to determine.
Defendant contends that the court should have directed a verdict in his favor on the ground that the uneontradicted evidence of the defendant was to the effect that the Pаckard automobile, which he owned and which was involved in the collision, was not being operated by him, for him or with his authority, knowledge or consent. The defendant was admittedly the owner of the Packard automobile which was involved in the collision.
On the question as to whether at the time of the accident the driver of the Packard car was the agent of defendant, Mr. L. D. Haglund, a witness, testified that shortly after the accident in question he had a conversation with the defendant Underdahl and that *247 Mr. Underdahl, after admitting he owned the car in question, stated that David Moore, the driver of the Packard, at the time of the accident, was working part time for defendant and was going to school part of the time, that the defendant stated that the hoy drove the car off аnd on for him, and reiterated on cross-examination that Underdahl told him that David Moore was employed by him, working part of the time, that is, going to school and working part of the time.
It appears from defendant’s testimony that he had known David Moore abоut four years; that the boy was an orphan; that he took an interest in him and assisted in looking after him, and that he was partially the guardian of the boy. He also stated that the boy drove the car in question once in a while, but he did not know that he took it without defendant’s consent. He further stated that Moore drove for him at times when defendant was with him and also that he drove a former car of defendant’s when defendant was not with him.
We cannot say as a matter of law that there is no evidence in the case upon the issue of agency. Defendant cites and relies upon
Judson v. Bee Hive Auto Service Co.,
In
Dierks v. Newsom,
“The court saw and heard the witnesses testify, and with this advantage, not enjoyed by us, it was for it to determine the degree of credence to be accorded to this testimony. It is nоt essential that the credulity of the court should correspond with the positiveness with which a witness testifies. A court may reject positive testimony, although it be not contradicted or impeached by any direct testimony. Its inherent improbability may be such as to deny it all claims to belief. A witness’ manner of testifying may give rise to doubts as to his sincerity, or create the impression that the facts testified to by him are colored or not correctly stated.”
See
Schultze v. McGuire,
In the instant case plaintiff’s prima facie showing is not based solely on the presumption of the ownership of the car involved, but is supported by corroborating evidence to which we have alluded in a general way. Defendant’s attempt to overcome plaintiff’s prima facie case is practically based upon his own testimony that the driver was not his agent at the time and-place of the accident. We think there was no error in the. trial court refusing to grant a nonsuit or to direct a verdict in favor of the plaintiff.
*249 Defendant assigns as error the rеfusal of the court to admit in the evidence defendant’s exhibit,- an insurance policy written by the G-reat Lakes Insurance Company covering his automobile involved in the collision. It was offered for the purpose of showing that defendant was not prоtected by insurance. It was not shown whether the defendant had other insurance policies on his car or not. L. J. Ruble was called as a witness for defendant. He had obtained a written statement from plaintiff in regard to the accident, which plaintiff clаimed was partly incorrect. Mr. Ruble was permitted to testify on cross-examination over defendant’s objection that in addition to being requested by Underdahl, the defendant, to investigate the collision in question, he was also in the employ of the Great Lаkes Insurance Company, which company issued the policy offered in evidence. On redirect examination the witness Ruble testified as follows:
“Q. Now you said in making this investigation you were employed, in addition to being requested by Mr. Underdahl, to make, you werе asked by the G-reat Lakes Insurance Company?
A. Yes, sir.
Q. In what way were they interested?
A. They had a fire, theft and collision insurance on Underdahl’s car.”
In
Kitchel v. Gallagher,
“Defense put on the witness-stand a Mr. Sowers, who had sought and secured a statement from plaintiff regarding the cause and manner of the aсcident. This statement differed materially in some particulars from the testimony of plaintiff. Defendant put on the witness-stand the party who had made the investigation and procured the statement. At that time the fact was brought out that he was representing an insurance company. For that reason defendant is in no position *250 to take advantage of the fact that evidence that defendant was insured was taken to the jury. ’ ’ See also Webb v. Hoover-Guernsey Dairy Co.,138 Or. 24 (4 P. (2d) 631 ).
It is contended by defendant that after thе question of insurance had been referred to on the cross-examination of Mr. Euble, the court should have permitted the defendant to introduce in evidence the insurance policy referred to for the purpose of showing that the Great Lakes Insurance Company had no interest whatsoever in the case. It will be seen that the matter of insurance was mentioned incidentally in eliciting testimony as to the interest that the witness Euble had in the case. Defendant seems to concede that the plaintiff had the right to bring out the fact of the employment of Euble by an insurance company for the purpose of showing his interest in the case and for the further purpose of passing upon'his credibility as a witness.
In
Fletcher v. Saunders,
The question of whether the defendant was protected by insurance was not аn issue in the case. In so far as the plaintiff was concerned, it was only introduced incidentally, as we have noticed.
*251
In a note to
Stehouwer v. Lewis,
74 A. L. R., p. 853, et seq., we find, in effect, the following. The right of the defendant to show that he was not insured or only partly insured has generally been deniеd. While the cases are not unanimous on the question, in Missouri, the right is denied, even though the plaintiff, by his examination of the jurors as to their interest in an insurance company, has injected the matter of insurance into the case. Thus, refusal of the court to аllow the defendant’s counsel to prove that his client was not insured, after the plaintiff’s counsel had been properly permitted to question the jurors as to whether they were interested in a named insurance company, which the counsel for the other defendant, out of the hearing of the jury, admitted carried the risk, was held not error in
Clayton v. Wells,
In
Stewart v. American R. E. Exp. Co.,
(Mo. App.)
The mere offer of the insurance policy in the present case would not alone show that the defendant was not insured. It did not pertain to any of the issues in the case. The cross-examination of the witness Rublе did not warrant the defendant, upon redirect examination, in showing that the defendant was not fully protected by insurance or to introduce the insurance policy in evidence. There was no other testimony offered or tendered upon that point. There was no error in the court’s ruling in this respect.
We find no error in the record.
Judgment of the circuit court is affirmed.