Opinion
Argued March 7, 1930
Affirmed July 1, 1930
Appeal from Circuit Court, Multnomah County, LEWIS P. HEWITT, Judge.
Action by Anna May Lawrence against Matt Troy. From an order setting aside the verdict for defendant and granting a new trial, defendant appeals, and plaintiff cross appeals.
ORDER AFFIRMED.
Frank S. Senn of Portland (Senn Recken of Portland, on the brief) for appellant.
Arthur I. Moulton of Portland (Lord Moulton of Portland, on the brief) for respondent.
This is an action to recover damages for injuries resulting from an automobile accident. The plaintiff Anna May Lawrence alleges, in substance, that she was the invited guest of defendant Matt Troy on a trip being made by them from Portland to a point on the coast in Tillamook county; that she was riding on the rear seat of defendant's automobile, the defendant and his sister occupying the front seat; that the automobile, being driven by defendant, approached a point in said road where certain repair work was going on and employees of the highway commission were engaged in working and using in said work a large road scraper, which was proceeding along where said road was constructed around a grade along a steep and precipitous hillside.
The complaint continues as follows:
"Said road at said point was substantially level with a curve to the left as the same proceeded toward Tillamook in the direction in which defendant was driving said automobile, and said road was so narrow that the space between said road scraper and the edge of said grade was very narrow and afforded room to pass said scraper only if the utmost care and attention were paid to the driving of said automobile, and if the said automobile were held close to said scraper and carefully adhered to the curve of said road. At the right-hand edge of said road the earth was soft, and its soft condition was plainly apparent to any person observing the same, and below said road was a steep and precipitous bank leading down into a creek a distance of something like 40 or 50 feet, so that there was a great and imminent danger that any person passing said scraper with an automobile would be precipitated over said bank if the utmost care and attention were not given to the driving of such automobile; thereupon plaintiff remonstrated with defendant and warned him about attempting to pass said scraper while the same was in said dangerous position, but defendant disregarded such remonstrance and warnings and proceeded past said scraper at a rate of speed of from 10 to 15 miles per hour, which speed was excessive under the circumstances, and was so great as to endanger the life of plaintiff and the other occupants of said automobile, and in proceeding at said speed defendant was careless and negligent, and said defendant in proceeding and attempting to pass said scraper carelessly and negligently failed to keep a lookout ahead and upon the road over which he was passing, and carelessly and negligently looked to his left and looked at the driver of said road scraper, and ceased to watch the road over which he was driving, and carelessly and negligently failed to cause said automobile to be driven close to said scraper and to closely adhere to the said curve, and to turn the same to the left sufficiently to follow said curve and keep said automobile on the solid portion of said highway, and carelessly and negligently attempted to pass said scraper in said narrow and dangerous place, and carelessly and negligently failed to heed the remonstrance of plaintiff and await a more favorable opportunity to pass said scraper, and carelessly and negligently permitted said automobile to proceed straight ahead when the same should have turned to the left in conformity with said curve in the road, and carelessly and negligently drove said automobile to and upon the soft earth at the extreme right of said road, and permitted the same to pass off of said grade and roll down the said steep and precipitous hillside, and to become lodged bottom side up against a tree on the side of said hillside, and plaintiff was thrown and precipitated through the top of said automobile and a further distance down said automobile struck obstructions which she cannot particularly specify, thereby seriously and permanently injuring plaintiff, and to her aggregate damage as hereinafter set forth."
Thereafter follows a detailed statement of plaintiff's injuries, which were very severe.
Defendant answered, admitting that, at the dates set forth in the complaint, plaintiff made a trip with defendant from Portland to Tillamook; that employees of the highway commission were engaged in operating a road scraper at the point in said road when the injury occurred; and that when defendant's automobile was opposite the scraper the automobile went over the bank, but denied every other allegation in the complaint.
A further and separate answer is as follows:
"That on or about June 7, 1926, the plaintiff and defendant's sister and defendant were in an automobile which was being operated by the defendant from Portland, Oregon, to Tillamook, Oregon, and that when said automobile was about a mile and a quarter east of Dolph, Oregon, and while opposite a road scraper on said highway, said automobile went over the embankment. That this plaintiff had often ridden with defendant in said automobile; that plaintiff was familiar with the circumstances and appreciated all the risk and danger of riding in said automobile, and was in a position to see and observe all the surrounding conditions of the road, the manner in which the automobile was being operated by the defendant, and that the plaintiff made no protest and acquiesced in and joined in the acts of the defendant in operating said automobile. That said automobile was being operated by the defendant at said time for the mutual benefit, pleasure and comfort and amusement of the plaintiff and the defendant and defendant's sister, and the defendant and plaintiff were engaged in a common enterprise and common venture in making said trip, and said trip was made for the benefit of plaintiff, as well as the benefit of the defendant.
"This defendant further alleges that said automobile going over said bank was not the result of any carelessness or negligence on the part of the defendant, but was wholly unavoidable, accidental and unforeseen so far as this defendant is concerned. That this defendant was required to go along said highway and the place where he went because of the presence of said scraper on said highway, which was being operated toward this defendant."
The cause, having been put at issue by an appropriate reply, was tried to a jury, which returned a verdict for defendant. A motion to set aside the verdict and for a new trial having been sustained, defendant appeals.
Before the case was submitted to the jury, defendant moved for a directed verdict in his favor and plaintiff moved for a directed verdict in her favor for the sum of $50,000. After the argument on the motion, defendant asked leave to withdraw his motion for a directed verdict, which was allowed over the objection of the plaintiff and this ruling is assigned as error by plaintiff. The motion for a directed verdict by plaintiff was overruled. Both parties appeal. Other particulars appear in the opinion.
As this cause must be tried again, we will only briefly state our conclusions.
We think the defense of "joint adventure" was not sustained by the evidence and that the court acted properly in excluding it from the jury. The plaintiff was an intimate friend of both the defendant and his sister who lived with him and constituted the whole of his family. For several years plaintiff had enjoyed the hospitalities of Miss Troy at her cottage at the beach, being given a room free of charge, but paying for her food. She occasionally assisted Miss Troy with her work, but evidently this was voluntary and in the capacity of a friend and not as a compensated employee. Miss Troy was glad to have her company and she was glad to be at the beach as Miss Troy's guest. As Miss Troy testified, "Mrs. Lawrence always had a standing invitation to go to my house at the beach, whether I went or not." Mr. Troy's automobile was the family automobile and both he and his sister were glad to have her go with them. On the occasion in question, Miss Troy was making a trip to the beach to put some cottages she owned in condition for the entertainment of summer travel and plaintiff accompanied her, as she frequently did, as a welcome guest, and Mr. Troy naturally took her, not only as his sister's friend but as his own friend. There was no more of the character of a "joint venture" about it than there is when a young man, at his own suggestion or hers, takes his "best girl" out for a drive.
Plaintiff was seated in the rear seat of the automobile which was piled up with bedclothes and like articles on the left side so that she could not see through the window on the left side of the car and only imperfectly in front by looking between defendant and his sister. The window at her right was unobstructed. She had ridden with defendant many times and testified that she had always found him a careful driver. Under these circumstances, she was not required to keep watch on the road or to do "back seat driving." If any danger had come to her notice and she had realized its existence, it would have been proper for her to warn the driver, if she had time to do so before the accident. The circumstances, as detailed by the witnesses, absolutely fail to show a situation where the plaintiff had an opportunity to observe the situation at the place of the accident until too late for a warning, if a warning was given, to be effective. The car was under the supervision of a driver, who, her past experience with him indicated to her, was prudent, careful and to be trusted, and there was nothing to call forth the following instructions:
"It is the duty of a guest or a passenger in an automobile to exercise reasonable care for his or her own safety, and if he knows and understands the negligent operation of the automobile and appreciates the danger involved, it is his duty to object or remonstrate to such negligent operation of the automobile, providing the guest or passenger has adequate opportunity to do so, so that if after having such knowledge, understanding and appreciation of the negligence and danger and also ample or adequate opportunity to protest or remonstrate against such negligence, the guest fails to do so, he must be held to have acquiesced in the negligent operation of the automobile, and if he adopted the negligence as his own he cannot recover for any injury caused by the negligence in which he has acquiesced, or which he has adopted.
"In this connection you are instructed that if you find from a preponderance of the evidence in this case that the plaintiff while riding along in this automobile saw the conditions there, knew them, and was familiar with the manner in which Mr. Troy was driving the automobile; knew, understood, and appreciated the danger, if any, at that particular place, and could see the same and the same was obvious, yet nevertheless made no protest about his driving but acquiesced in it, and if you further find that she had opportunity to protest if she wanted to but notwithstanding that knowledge and the opportunity to protest, acquiesced in his driving and the manner in which he drove, then under those circumstances, she must be held to have adopted his negligence, if any, as her own, and would not be entitled to recover.
"The court did not intend and I think the jury so understood — if they did not understand — the court will instruct you now that there is no question involved in this case of contributory negligence on the part of the plaintiff herself. It is not claimed that she was negligent by any act that she did. The only claim is that when she had full knowledge of the whole situation and appreciated the danger, and claiming that she had an opportunity to do so, she failed to protest or remonstrate against the manner in which the automobile was being operated at the particular time and place, and as the court instructed you before, if there was an ample opportunity to protest and if the plaintiff had full understanding and appreciation of the situation — of all the facts and circumstances surrounding the conditions there — and did know and fully appreciate the danger, if any, and did know and fully appreciate the negligence, if any, on the part of the defendant, and had ample and adequate opportunity to make any protest or warning and failed to do so, under the law, she is considered to have acquiesced."
By reason of this error, the court was justified in setting aside the verdict.
The court did not err in refusing to direct a verdict in favor of plaintiff. The testimony was very conflicting. On the one hand, if the jury believed the testimony of plaintiff's witnesses, there was enough to have justified them in finding a verdict in her favor; and, on the other hand, if they accepted the testimony of defendant and his witneses, they had abundant grounds to hold the defendant blameless. In the face of this contradiction in the testimony, it would have been gross error for the court to have said: "Ladies and gentlemen of the jury, you will return a verdict in favor of plaintiff for $50,000," or for any other amount.
We find no rule that prohibited defendant's counsel from withdrawing their motion for a directed verdict for defendant, and able counsel for plaintiff has cited us to no authority to that effect. In view of the contradictory evidence on many important features of this case, we deem it best that the action of the court in granting a new trial should stand, rather than that we should attempt to retry it here upon the transcript.
The order of the circuit court is affirmed.
COSHOW, C.J., RAND and ROSSMAN, JJ., concur.