523 P.2d 1007 | Or. | 1974
This is an action arising under the guest passenger statute, ORS 30.115,
Plaintiff alleged both intoxication and gross negligence in her complaint against the defendants. The allegation of intoxication was stricken, but the trial court instructed the jury that it may consider the defendant’s drinking on the issue of gross negligence. Specifically, the jury was instructed that it should consider the defendant’s drinking for whatever rela
The defendants Gontend that the trial court erred in denying Mrs. 'Widman’s motions for an involuntary nonsuit and directed verdict; that the trial court erred in instructing the jury that it could consider evidence of Mrs. Widman’s drinking as bearing on the issue of gross negligence; and that the defendants, Mr. and Mrs. Widman, doing business as the Penguin Tavern, should have been granted an involuntary nonsuit and directed verdict.
In deciding defendants’ assignments of error, we view the evidence in a light most favorable to plaintiff.
In late afternoon of January 18, 1970, four women met defendant Mrs. Widman at the Penguin Tavern
While waiting for the group to arrive, Mrs. Widman had one beer. The group then rode to the Bike Room in Mrs. Widman’s car, with her driving.
After traveling about 90 feet from the ramp entrance, the Widman car struck a car driven by a Mr. Shaw. The cars impacted so that the left front of the Widman car was damaged as was the right fender and door of the Shaw car.
There was evidence that at the time of the accident the road was wet and the windows of the Widman car were fogged.
Under Keefer v. Givens, supra, we held that proof of drinking and erratic driving prior to an accident, plus ordinary negligence, can equal gross negligence. Thus, it is unnecessary for the plaintiff to show that the defendant, in a guest passenger case, was intoxicated
Also, the jury could have inferred that the defendant was attempting to execute a U-turn in the middle of the bridge which would certainly show erratic behavior, corroborating the effect the drinking had on the defendant’s ability to drive. Thus, there was sufficient evidence to submit the case to the jury on the issue of gross negligence as that term was defined in Keefer, and the trial court did not err in denying the motions for involuntary nonsuit and a directed verdict.
Finally, as to defendant’s contention that there was insufficient evidence to present a jury question on the issue of the Penguin Tavern’s liability, we find that there was sufficient evidence that Mrs. Widman was, at the time of the accident, acting in the furtherance of the business enterprise, and therefore the jury could have found the tavern vicariously liable.
Affirmed.
ORS 30.115 provides:
“No person transported by the owner or operator of a motor vehicle, an aircraft, a watercraft, or other means of conveyance, as his guest without payment for such transportation, shall have a cause of action for damages against the owner or operator for injury, death or loss, in case of accident, unless the accident was intentional on the part of the owner or operator or caused by his gross negligence or intoxication.”
The Widmans are co-owners of the Penguin Tavern and have been joined as parties defendant in that capacity.
See Willoughby v. Driscoll, 168 Or 187, 120 P2d 768, 121 P2d 917 (1942).