*1 Argued 3, reargued 30, October March reversed with May 13, petition rehearing instructions denied June
ROEHR v. BEAN
Thomas respondent. him on the brief were With the cause for Vergeer Portland. Samuels, & and Justice,
Before Chief Rossman, McAllister, and Jus- Lusk, Denecke Perry, Sloan, O’Connell, tices.
PERRY, J. plaintiff’s April Donald 22, 1959,
On intestate riding guest passenger in a a as Wiekersham C. Triumph sports and driven Gene Ruther- car owned approximately 5 miles occurred ford. An accident and Ruther- and both Wiekersham east of Tillamook killed. ford were brought dam- plaintiff action recover
The wrongful ages alleged death Donald C. for the jury a verdict for the returned The Wiekersham. appeals. plaintiff and the defendant principal contention the defendant The light a most favorable to evidence, viewed gross plaintiff, law, as a matter of fails, establish negligence part Rutherford, of Gene the driver on sports car. discloses that Wiekersham and evidence
The lived in Grove, both of whom Forest had Rutherford, they peo- There visited several driven to Tillamook. evening ple, a in the drove to bar Inn, Juno. They grill left the north of Tillamook. 2.5 miles approxi- approximately Inn a.m. At at 2:15 Jnno mately city policeman, 2:30 a Tillamook who was a.m., driving north on avenue in noticed Tillamook, Pacific Triumph sports crossing car Pacific avenue white two at Third street. Third street is about blocks policeman north of where the At was at time. Third street it avenue where intersects Pacific designated sign “Stop” crossing is a for those Pacific avenue. testimony
The officer’s is as follows: approximately “A I was two blocks south on Pacific from Third. Avenue, night
“Q What time was this that first observed this car? Approximately day time. 2:30,
“Q And is there traffic control at intersection of Third and Pacific? *3 yellow “A Yes, there is. There’s a caution
light stop light for Pacific Avenue and a red for Third Street. right, you you
“Q All what did do—what did Triumph sports observe this white ear do in rela- stop light? tion to that Triumph go through
“A I observed it—a white the intersection Third and at a rate Pacific fast speed, thought than I it should have been, faster stop sign. particular that # [*] # # you any opinion speed
“Q Did form as to the through that car as it went that intersection? put say “A I cannot it. on I will negotiate stop light. than it be to faster should the I “MR. SKOW: move that answer be stricken, please. anything. the Court It doesn’t
if tell us It’s responsive. not question the whether He asked “THE COURT: you opinion speed. the had an as to judge maybe I would “THE WITNESS: fif- miles an teen hour.” (Italics ours) pursuit. However, then started
The officer light or his flashed sounded that he his no evidence an be drawn that that inference could siren so the. Triumph pursuit the knew of the white driver of away attempting the officer. As run from was pursuit, follows the the officer testified as : you up Did ever catch car?
“Q with INo, “A did not. you gain it? Did ever on
“Q highway. Slightly, “A on flat & [*] # [*] you Okay, last the car, and at the saw “Q time High- proceeding Triumph, east it still on was
way 6? Yes, it' was.
“A your speed just you broke was “Q What before chase? off eighty-five. It was around “A half two and a miles from this And was it “Q you an hour attained this 85 miles had turn speed? your question.
“A I don’t understand your just you broke off before Was it “Q an 85 miles hour? reached chase Yes.” ours) (Italics night testified officer further
The *4 pavement fog and the or mist, was no there clear,' dry. highway that this was new also testified He where this accident occurred. thereon with a divider Other evidence discloses there was no other highway morning. traffic on the at this hour of police A state who arrived at officer, the scene of approximately morning, the accident at 6:20 a.m. that by plaintiff was called as a witness and testified as follows: highway “A Well, the here is—the first four eight
and tenths miles from Tillamook is a new highway. joins highway It the old on a curve and highway there is—has a divider the center of the road. There is another side road that enters Highway traveling 6 there east also, or towards highway highway Portland. The joins where the new highway gradual right the old is a turn. The asphalt, road itself is both sections, the new and the old. any dividing “Q are Now, there marks on the
highway point? at this highway Well, is divided a broken roadway white center line, itself, each lane of traffic. any- you “Q Are I oh, don’t know what — separators call parts traffic them, or raised
highway point? at this “A Yes, there is one island there is— divides the so that the eastbound traffic, heading or the westbound traffic towards Tilla- -stay right mook must to the island; and if you your want to turn left can bear to left go up just the—this—what would -a road, side be— goes right off at this island and the eastbound coming keep traffic towards Portland has to the go right around the divider so the side road people can enter from the south and the that want right get to turn to the there can over in the other going by. painted yellow. They traffic These are asphalt. are a raised It is laid out, of course it’s *5 604 odd-shaped Those divider, an asphalt strips but it laid ont. They ap- laid are raised are out.
proximately np inches the to 3 off yellow yellow completely painted with are around line
it. right, you, during the All now did course “Q your investigation, any gouges marks or on of find the raised dividers?
ÍÍ* [*] [*] [*] -Something edge had “A the of the struck they They painted jingle yellow. as are called. are bars, yellow asphalt and Part of the some of the paint off and was out on the main had flaked portion of the road. traveled right, All “Q did observe skid marks highway? on the there were. Yes, sir,
[*] # # # skid marks not—was not “A The were one mark was at the on mark. The island solid first point highway and there was marks new from top, to the car black but where left just mark, not one solid there was no—there was marks.” black ours) (Italics that on other also testified occasions he
The officer driving over of cars raised bars had evidence seen highway. in the dividers used as by striking argued parties, it was the of As both triggered the accident. these bars McKenna, 354 P2d 366, v. 56, In Williamson opinion court, Mr. this after Justice an O’Connell, prior review decisions exhaustive an adopted definition of the broad “reckless con- court, Negligence in Restatement, out Torts, set duct” aas to between guide distinguishing gross § neg- ligence ordinary as follows: negligence, “The actor’s conduct is in reckless disregard of safety another if he an intentionally does act or to an fads do act which it is duty his or reason other knowing havmg to know of do, which would lead a reasonable man to realize facts the actor’s conduct not an only creates unrea- sonable risk of harm to the other bodily but also a high degree probability that substan- involves tial harm will result to him.” *6 (Italics ours)
As the late Turner, stated Mr. Justice in Brand, Adm’r v. et McCready al., 190 Or 28, 46, P2d 1010:
“The of task a line of drawing demarcation cases in which is separating evidence of only from those in ordinary negligence which there is substantial evidence of gross or negligence reckless is one disregard of the most difficult and delicate # * tasks the courts. imposed upon if we are to Nevertheless, our perform we duty, must in a carry case out our functions. William- given McKenna, son v. supra.
It from is clear the above definitions, and their out in Williamson v. McKenna, as set interpretation that the a supra, doing of act negligent alone is not sufficient to constitute gross negligence. There must be other factors involved.
These other factors are generally to be found in the other circumstances surrounding occurrence which are so a obvious that reasonable man would and danger realize that a recognize high degree of exists that to encounter probability danger will result in serious harm.
In this the record case, does not disclose the in To in dicated drive excess of speed. the indicated only prima negligence. speed facie evidence of There existing other and there must be circumstances then operation to warrant conclusion negligent in a vehicle excess of constituted n act. Nash, said v. We Burrows P2d 106: * “* * a conditions, with other Combined vio- may upon rule be considered
lation the basic certainly negligence; question gross but it would speed, in indeed, an unusual where and of ease, be gross negligence within the itself, would constitute meaning of the law.” previously the evidence discloses the stated,
As only night a be that was clear, circumstances to other highway dry, straight pavement that was that was traffic. no other level, signal- no in this fact There is evidence case danger ing great driver of a motor at to a vehicle apparently operator point lost control of where the the vehicle. would certain the commission not
It is *7 slightly employ raised form an these bars to island highway knowledge completed if it common was on a danger great an of obvious these bars constituted that traveling public. bodily harm to the analyzed in this case is the evidence as it When necessary it no more than do, for us shows speed drove his automobile at a Rutherford of Gene per approximately miles that he hour,' 85 struck the highway placed in the inch bars lost to three two the vehicle. of control negligence, but falls short of discloses estab-
This negligence lishing gross in v. as defined Williamson snpra. McKenna, failing court erred in to sustain de-
The trial motion for a directed verdict. fendant’s judgment with The is reversed instructions enter judgment for the defendant. dissenting.
SLOAN, J., presented by problem The real ease is to if the inferences to be drawn determine from the jury “tenuous” that a factual evidence were so should permitted not be to make them. Eitel v. Times, Inc., permissive P2d Or 485. And do the 1960, 585, inferences indicate the state of mind defined in v. McKenna, Williamson 354 P2d 56. permissible I think the factual evidence does create high inferences that Rutherford’s conduct involved a degree probability of that harm could result and that courting he could well have known that he was dis- supra. McKenna, aster. Williamson v. attempt possible
I will not to mention all of the appear speed It inferences. does that the at which the being car was driven in Tillamook violation a light; any traffic the lack of other traffic kind and speed police the extreme at which the Tillamook offi- cer followed Rutherford could have caused the latter being pursued police to believe he was officer, though was even not, course, direct evi- that effect. dence to
It could also be inferred that under all of the cir- Rutherford cumstances must have been aware that he driving so fast that he could not control the car impediment if he encountered an in the such “jingle” jury as the bars at the The curve. could have great inferred the rate of was so *8 possible. of the car was not In a effective control quite case aspect as to this of the situation similar, here, for the stated: “The Justice skid marks court, Belt, plainly speak and course of the car of excessive Cowgill, and loss of control of the car.” Adm’r v. Boock, Adm’r, 218 P2d 449. 282, 290, properly jury. This case was submitted to the Chief Justice McAllister Justice O’Connell . join in this dissent.