Opinion
Argued November 3, 1967 Affirmed May 1, Petition for rehearing denied May 29, 1968
Appeal from Circuit Court, Multnomah County.
PAUL R. HARRIS, Judge.
AFFIRMED.
Donald C. Walker, Portland, argued the cause and filed a brief for appellant.
Mitchell Crew, Portland, argued the cause for respondent. On the brief were Mercer, Anderson Crew, Portland.
The plaintiff, a guest passenger in defendant's automobile, brought this action to recover damages for personal injuries he received in an automobile accident. He alleged in his complaint that the accident was due to the gross negligence and the intoxication of the defendant who was operating the automobile. ORS 30.115.
The trial court withdrew from the consideration of the jury the issue of gross negligence and the jury resolved the question of intoxication against the plaintiff. From the judgment entered the plaintiff appeals.
The plaintiff's sole contention on this appeal is that the trial court erred in not submitting the question of gross negligence to the jury.
The facts disclose that the day of the accident was a bright sunny day and the pavement was dry; that defendant had been driving his automobile in a proper manner when suddenly at a speed of from 35 to 40 miles per hour he attempted to make a left turn from Cleveland street onto Emerson street in the city of Portland. The tires screeched, the car rocked, the front wheels hit the west curb of Cleveland street, went over the curb and travelled 134 feet where the automobile ran into the concrete wall of an apartment house.
The conduct of the defendant in attempting an approximately 90 degree turn at 35 to 40 miles per hour is evidence of negligence, but it will not suffice to establish gross negligence. Fletcher v. Walters, 246 Or. 362, 425 P.2d 539; Gray v. Galantha, 235 Or. 521, 385 P.2d 746; Burghardt v. Olson, 223 Or. 155, 349 P.2d 792, 354 P.2d 871; Williamson v. McKenna, 223 Or. 366, 354 P.2d 56.
The judgment is affirmed.