Opinion
Argued October 20, 1927
Affirmed November 15, 1927
From Tillamook: GEORGE R. BAGLEY, Judge.
For appellants there was a brief and oral argument by Mr. E.L. McDougal.
For respondent there was a brief over the name of Messrs. Botts Winslow, with an oral argument by Mr. H.T. Botts.
This is an action to recover damages for an injury sustained by plaintiff as the result of a collision between an automobile driven by plaintiff's husband and an oil truck owned by the defendant company and driven by defendant O.C. Kumler. The gist of the complaint is that the negligence charged, as stated in the complaint, was that defendants were driving their truck upon the public road and while so engaged carelessly, negligently and unlawfully caused said truck to be parked upon the main traveled portion of said county road so as to obstruct the same at said point about one and one-half miles south of the town of Amity; that said road at that place was a paved road, the pavement thereon being sixteen feet in width; that said truck was so left parked upon the main traveled portion of said road and was by defendants carelessly and negligently caused and permitted to remain so parked as to obstruct the travel thereon so there was not sufficient room for a passing vehicle to pass said truck to the right thereof, nor for two vehicles to meet and pass on the left side of said truck.
Defendants answered together denying the negligent acts alleged in the complaint, and, by a further and separate answer, set up that at the time of the collision, the engine of the company's truck became excessively hot and that it was necessary to stop said truck upon the highway to refill the radiator, in which the water had boiled down, with water from a wayside ditch, and, that after the radiator was so filled, defendant's driver was in the process of cranking the truck, for the purpose of continuing the journey, when the same was struck in the rear by an automobile in which the plaintiff was riding.
The answer further alleged that the automobile in which plaintiff was riding was driven by Alex Watt, husband of plaintiff, and was operated at a high and dangerous rate of speed under the circumstances, to wit, at the rate of over thirty miles an hour when the pavement was in a slippery condition, and was operated by Watt without due regard to the traffic upon the pavement both coming toward and preceding the machine which Watt was driving, and without observing the truck of defendants herein and its position upon the highway, all of which facts were well known to plaintiff; that the plaintiff was reckless, careless and negligent in failing to remonstrate with her husband on account of the manner in which he was driving the machine, in failing to call his attention to the circumstances surrounding the operation of his car, in failing, under the circumstances, to keep a lookout ahead for traffic upon said highway, in failing to apply the emergency brake in time to prevent the collision, and that, as the result of her negligence in the respects aforesaid, the collision occurred and said negligence was the proximate cause thereof.
The new matter having been put in issue by the reply, there was a jury trial and a verdict for plaintiff, and, from a judgment upon said verdict, defendants appeal. AFFIRMED.
The defendants moved for a nonsuit and later for a directed verdict, and the court's refusal to grant either of these motions is the only alleged error to be considered here.
One who parks his automobile upon the public traveled part of a highway is prima facie a violator of the law, and it is incumbent upon him to show affirmatively that it was necessary for him to so park it at that time and place. It is not the duty of a party injured in a collision, under such circumstances, to show that such parking was not necessary, but for the other party to bring himself within the exception prescribed in the statute. Of course, the mere fact that such parking is unnecessary will not permit a recovery by one who recklessly or carelessly runs against the car so parked. Contributory negligence is still a defense, but this must be pleaded and proved either by the circumstances themselves or by affirmative testimony.
The testimony here is conflicting, but as the jury is made by law the judge of the value and effect of evidence, we have no right to set aside the verdict unless there was a total lack on the part of plaintiff to introduce any substantial evidence to sustain her contentions. The question here is: Did plaintiff introduce any substantial testimony to justify a verdict? The pleading by defendants of the proviso in the statute is defective.
The material part of subdivision 19, Section 2, Chapter 371, General Laws of 1921, so far as it relates to this subject, is as follows:
"No vehicle shall be parked upon the main traveled portion of the highways of this state; provided, that this shall not apply to any vehicle so disabled as to prohibit the moving of the same."
There is no allegation that the contingency which caused defendant's driver to stop on the highway was of such a character as to prohibit his moving the same farther along or off the traveled part of the highway, but conceding that the pleading is sufficient, the jury was the judge as to whether the truck was actually stopped for the purpose indicated in Kumler's testimony, and, if so, the jury was still the judge as to whether there was such an emergency as to justify such stoppage at that place; and, under the surrounding circumstances, the defendant Kumler was the best judge as to this. According to the testimony of both Mr. and Mrs. Watt, the defendant Kumler stated at the time of the accident, and before he had an opportunity to realize the possible financial consequences of his admission, that the collision was all his fault, and, a very short time afterward at Amity, when plaintiff's wounds were dressed, stated to the doctor that his company would pay for that service, which it actually did.
The jury had a right to infer that this payment was not an act of generosity, but rather on account of the representation of Kumler that he was the party in fault. If the company had been informed that Watt had carelessly and recklessly bumped into its truck and thereby injured it to a small extent, it is improbable that it would have felt obligated to pay for even a small part of the injuries occurring thereby.
If the jury believed the testimony of plaintiff and his wife, the case is about as follows:
On January 16, 1924, plaintiff and her husband started in a light car, driven and owned by Mr. Watt, intending to go from Salem to Tillamook over the paved highway of the West Side road. The morning was quite foggy in some places and at others not extremely so, but the moisture on the windshield was such as to partially obscure plaintiff's vision at all times. The windshield wiper was on the left side, and, by its aid, Mr. Watt could see better than his wife, but it is evident that neither was able to see as distinctly as if the weather had been clear. About a mile and a half south of Amity, Watt saw the truck of the defendant in the road a hundred yards or more ahead of him on the same side of the road, namely, on the right-hand side, and supposed that it was traveling in the same direction that he was, probably being misled by the atmospheric conditions. About a hundred yards farther north was a car on the west side of the road apparently coming south Watt was driving slowly, not to exceed twenty miles an hour, and after sizing up conditions, judging that the car coming south would pass the truck about the same time that he would overtake it, he slowed up accordingly. His mistake was, that the truck, instead of being in motion, was stationary and when he discovered this fact, he put on his brakes and called to his wife to put on the emergency brake, but before this was done, the car ran or rather slid against the rear end of the truck breaking the windshield and fender of Watt's car, doing other damage and severely injuring plaintiff. The truck was slightly damaged but not to such an extent as to prevent it from going on, and in fact it towed the Watt car to Amity where Mrs. Watt's injuries were dressed, and later, to McMinnville.
The truck was standing, according to the testimony of plaintiff and her husband, which was contradicted, about two feet west of the east side of the pavement so that there was no room to pass on that side and the proximity of the car coming south rendered it dangerous to pass on the other side. The driver gave a very plausible explanation of the necessity of his stopping where he did, but in view of the testimony tending to show that he had admitted to plaintiff and her husband that he was in fault, the jury evidently did not credit his explanation, probably being of the opinion that he could have gone a mile and a half into Amity before refilling his radiator without injury to his car. It is not for the members of this court to weigh the evidence and say how they would have decided as to its value. We are of the opinion that there was some evidence on the part of the plaintiff which entitled her to go to the jury and, such being the case, the judgment is affirmed.
AFFIRMED.
RAND, C.J., and COSHOW and ROSSMAN, JJ., concur.