Ross v. Hayes

157 P.2d 517, 176 Or. 225, 158 A.L.R. 452, 1945 Ore. LEXIS 118

• Court: Oregon Supreme Court
• Decided: February 6, 1945
• Status: Published

Opinions

BAILEY, J.

Plaintiff, Mildred Ross, instituted this action against Frank Hayes, Consolidated Freight-ways, Inc., and Albert E. Ault, to recover damages for injuries sustained by her when the automobile in which she, was riding as a guest of Hayes collided with the automobile truck owned by the Consolidated Freightways, Inc., and driven by Albert E. Ault. From a judgment in favor of plaintiff and against all of the defendants, the latter appealed. Before oral argument, the appeal was dismissed as to defendants Consolidated Freightways, Inc., and Albert E. Ault. We therefore are concerned only with the Hayes’ appeal.

The first error assigned by defendant Hayes is the refusal of the court to grant his motion for a directed verdict. The ground of the motion was that there was no evidence of gross negligence on the part of Hayes. In discussing this assignment, we must consider the evidence in the light most favorable to plaintiff.

The accident occurred near the town of Algoma in Klamath county, about 10:30 in the forenoon of December 27, 1940. Defendant Hayes, Mrs. Cleata Hayes, his wife, Mildred Ross, who was a niece of Mrs. Hayes, and Mrs. Mary Wing, left Junction City, Oregon, between 5 and G o’clock in the morning of December 27, for Los Angeles in a Dodge sedan which was owned and driven by Mr. Hayes. They proceeded south over the Pacific highway to Goshen, Oregon, and thence over the Willamette highway, which crosses the Cascade mountains and connects with The Dalles-California highway at a point some 100 miles southeast of Eugene. Prom there they traveled in a southerly direction over The Dalles-California highway. As they were passing through an S curve, near Algoma, the Dodge suddenly swerved clock-wise across the highway and skidded sideways 75 or more feet. The rear of the Dodge collided with the front of the Consolidated Freight-ways’ truck, which was approaching from the opposite direction, causing the Dodge to skid counter-clockwise and come to rest alongside of the truck.

The truck was transporting a Pontiac coupe, which was tilted in the air at an angle of approximately 45°. Due to the violence of the impact the Pontiac was hurled from the truck and landed on the Dodge, crushing the top of the latter car.

At the time of the accident Mrs. Wing was in the front seat with the driver. Plaintiff and Mrs. Hayes were in the rear seat, plaintiff sitting on the left side. All four of the occupants were “knocked unconscious”.

Where the accident occurred the entire twenty-foot width of the oiled macadam pavement for a distance of 100 to 150 feet was covered with frost, making the road surface extremely slippery. The frost on the highway ‘ ‘ doesn’t show any particular color; just looks clear.” At times it can be seen, depending somewhat on the direction in which one is looking. “Lots of times you can’t see it until you are right on top of it.” Defendant Ault testified that he did not have any trouble in seeing the ice at the place of the accident, but he did not say where he was when he first saw it. Neither defendant Hayes nor any of the passengers in the Dodge car noticed the frost or ice on the pavement before the car started to skid.

From 4:25 p. m., December 26, to 4:25 p. m., December 27, 1940, the temperature at Klamath Falls, 11 or 12 miles to the south of the place of the accident, ranged from 30° to 40° above zero. On the day that the accident occurred, the sun was shining and wherever there was frost on the surface of the highway it soon disappeared after being exposed to the rays of the sun. However, up to the time of the accident the place where the collision occurred was shaded.

The S curve above referred to was described as “not á very steep curve at all. I wouldn’t say it was a steep curve, just a modest curve.” Plaintiff estimated that defendant Hayes was driving from 40 to 45 miles an hour when he “went into this curve.” She further stated that as they entered the curve the car was partly to the left of the center line. There were signs along The Dalles-California highway warning motorists that the pavement was slippery when wet or frosty. There was no such sign closer than one mile north of where the accident occurred.

According to plaintiff, there is other evidence in the case tending to prove that the accident was caused by the gross negligence of defendant .Hayes. Therefore we shall refer now to that evidence.

It rained for a short time after Mr. Hayes and his party left Junction City. From about a mile west of the Cascade tunnel to a point on The Dalles-California highway, some distance south of Chemult and from 20 to 25 miles north of the place of the accident, the surface of the roadway was covered with packed snow, making it slippery in places.

After leaving Chemult and while on the snow-covered highway, Mr. Hayes attempted to pass a truck which was traveling in the same direction. He sounded his horn several times, turned to his left and started to pass. As he came along the side of the truck the driver thereof failed to yield the right of way. Hayes thereupon applied his brakes, causing the car to skid into the snowbank along the highway. Miss Ross thus explained the incident:

“We were going along the highway and we came up behind a transport truck and Mr. Hayes wanted to pass the truck, and so he attempted to and as we came along the rear wheels of the truck we saw that the truck driver didn’t know that we were there, because he was out across the road, and Mrs. Hayes suggested that he not pass at that time but wait until he knew that the driver realized that we was behind him, and Mr. Hayes continued to try to pass the truck and ran into the snow bank.

“Q. Now, did I understand you to say at the time that Mr. Hayes drove up behind this truck, before he attempted to pass or in the act of passing, his wife objected to him passing or told him not to pass; is that right?

“A. Yes.

“Q. And lie continued to pass anyway, did lie?

“A. He did.

“Q. Well, did either of you say anything to Mr. Hayes about it? [passing the truck]

“A. No, Mrs. Hayes did that.

“Q. Just what did she say to him?

“A. She said that she wished he wouldn’t pass then, that he would fall behind and wait.

“Q. And what did Mr. Hayes say

“A. Mr. Hayes continued to pass.

“Q. In other words he didn’t say anything; he just kept on going?

“A. He just kept on blowing the horn and attempting to pass the truck.”

Miss Ross was unable to estimate the distance between where the snow ended and the place of the accident. She stated that there were “icy places” along the highway between those points. Her testimony in this respect is as follows:

“Q. From the time you ran out of the snow to the place of the accident will you describe the condition of the road between those points?

“A. Well, we left the snow and there were icy places on the road, but not snow.

“Q. What was the manner in which Mr. Hayes drove along there? Describe how he was driving at that time.

“A. He was driving about 40 or 45.

“Q. After you left the snow did Mr. Hayes experience any "trouble with the car?

“A. Well, that was the way I knew it was ici, because I felt the car slide several times; it was slipping.

* $ * * *

‘ ‘ Q. Were you in a position there — I mean your position in the car — so that you could see the roadway itself immediately in front of the car?

“A. No, not immediately in front. I could see farther out ahead.

“Q. Did you notice any ice on the pavement!

“A. No, I didn’t.

On cross-examination, she gave the following testimony :

“Q. Now you have testified that you recall several occasions when you felt the car slipping. Am I correct in understanding that those occasions were once where the car was apparently on ice as distinguished from snow?

“A. Yes, I believe so.

“Q. Am I correct also that there was no occasion on which you ever made any protest of any sort to Mr. Hayes in regard to the manner in which he was driving?

“A. Not directly, no.

“Q. What do you mean by not directly?

“A. When we were passing the truck Mrs. Wing and I both were discussing whether or not we should continue to pass, because it was dangerous there, and that would be indirectly, wouldn’t it?

“Q Well, did either of you say anything to Mr. Hayes about it?

“A. No, Mrs. Hayes did that.

“Q. Was there any other occasion on the trip from Junction City to the point where this accident occurred when anybody was discussing the manner in which Mr. Hayes was driving the machine?

“A. Do you mean criticizing?

“Q. Yes.

“A. Well, we were constantly discussing road conditions.

“Q. What discussion was that?

“A. We were talking about the snow that we were passing, and when we slipped we all felt that.

“Q. You would discuss the slipping, would you?

“A. We mentioned that.

“Q. Did Mr. Hayes ever say anything about the ear slipping on the ice?

“A. What do you mean?

“Q. Did Mr. Hayes make any comment that you remember on this trip of the car slipping at any time when it went over ice?

“A. No, but he surely knew it.

“Q. Then if I am correct there was just the one time when there was a direct conversation that you recall between Mrs. Hayes and Mr. Hayes about the attempted passing of the truck? Is that right?

“A. That is the one that stands out in my memory, yes.

“Q. Do you think there may have been other occasions when anyone in the car said anything to Mr. Hayes about the speed at which he was traveling?

“A. I think Mrs. Hayes could have, but I wouldn’t say it because I don’t know.”

At another place in her testimony Miss Ross stated that she remembered several occasions when the car slid on the pavement. She also referred to the pavement as being icy where Mr. Hayes attempted to pass the truck. She was not sure whether it was packed snow or ice that caused the slippery condition of the roadway. Her testimony in this respect is as follows:

“Q. Is your testimony that there wasn’t any snow on the pavement where he was going to pass ?

“A. I don’t remember whether it was packed snow or ice, but I remember getting out of the car and not being able to stand.

“Q. That is the only time anybody said anything to Mr. Hayes about his driving, is it?

“A. That is all I remember now.”

Defendant Ault testified that he first saw the Dodge car when it was approximate!}- 300 feet away and he thought it was “backing out of a side road” as it was “generally crossways of the road.” He also said he soon realized that it was skidding “and out of control.”

Mr. Floyd E. Billings stated that he had visited Mr. Hayes at the hospital the day following the accident and that Mr. Hayes had told him that he (Hayes) “was on the wrong side of the road as he approached the curve”. He further testified that a little later on the same day, and in the same place, he was talking with Mr. and Mrs. Hayes, and that she said, in the presence of Mr. Hayes, “ Yes, Frank, [referring to Mr. Hayes] you were driving on the wrong side of the highway. * * * You had been driving on the wrong side a good many times and I had cautioned you about driving at the speed you were driving on the highway when it was frosty and icy, * * *. Prior to this accident we had another accident * ° At that time you were driving at such a speed on the ice that you had no control of your car.’ ” Mr. Billings further testified that defendant Hayes had not denied the statements made by his wife.

Mr. Ernest E. Serber, the under-sheriff of Modoc county, California, was the only witness of the accident, other than the occupants of the Dodge and the driver of the truck. He was on his way to Portland and had followed the Consolidated Freigiitways ’ truck for three or four miles before the collision. The truck, he stated, had been traveling at a speed of 45 to 50 miles an hour and he had kept within 150 to 200 feet of the truck. When he first observed the Dodge it was going at an estimated speed of 40 miles an hour, and as it came around the curve it “was straddling the yellow line ’ ’. He stated that in his opinion the Dodge skidded about 75 feet and the truck 35 feet, and that the truck was going about 25 miles an hour at the time of the impact. After stopping for a short time where the mishap occurred, Mr. Serber proceeded north over The Dalles-California highway. He observed “dry spots and icy spots” along the highway, but he was unable to state where the icy places were or how many he saw. He did not describe the icy places. The condition of the roadway did not produce any change in his speed and he continued to drive from 45 to 50 miles an hour after leaving Algoma.

Mr. Orris Orville Moon was at Algoma shortly after the accident. He was an employee of the state highway department and his duties were to supervise the condition of the highway between Klamath Palls and Port Klamath, a distance of approximately 37 miles. Wherever the road surface was slippery he sprinkled sand. At two or three places between Klamath Palls and Algoma he found slippery places where he placed sand. After briefly inspecting the automobiles involved in the accident, he proceeded some eight miles northward to Lamm’s mill, but he found no icy places on the highway north of Algoma. He, however, did not travel on this portion of the highway until more than an hour after the accident.

Mr. Hayes was an experienced driver. The brakes and tires on his car were in excellent condition. The tires on the rear wheels had been driven less than 1,000 miles. There were no chains on the wheels of his car nor were there chains on the truck of the Consolidated Freightways. In fact there is no evidence in the case that any of the motor vehicles in that district were using chains or that by the use of chains driving would have been made any safer.

Before discussing the question of whether there is any substantial evidence of gross negligence on the part of the defendant Hayes, we shall consider defendant’s objection to the admissibility of Billings’ testimony as to what was said by Mrs. Hayes in the presence of her husband.

It is argued by defendant Hayes that in civil cases statements made to a third party by one spouse in the presence and against the interest of the other spouse, and not denied by the latter, are inadmissible in evidence. In support of this contention it is asserted that there is a disinclination on the part of one spouse to deny, in the presence of others, remarks made by the other spouse for the reason that it might threaten the peace of their marital relation, and therefore no inference is raised by silence.

The inadmissibility of statements under such circumstances is not without support. 20 Am. Jur., Evidence, § 567, p. 480. But the great weight of authority, as we shall hereinafter point out, is to the contrary.

Section 2-228, O. C. L. A., provides in part as follows :

“In conformity with the preceding provisions, evidence may be given on the trial, of the following facts:

“(3) A declaration or act of another, in the presence and within the observation of a party, and his conduct in relation thereto;

& # s» J >

Without discussing the reasons advanced by the defendant herein as to the inadmissibility of such testimony, this court in Swain v. Oregon Motor Stages, 160 Or. 1, 82 P. (2d) 1084, 118 A. L. R. 1225, ruled that tinder the provisions of the foregoing statute, statements made by the wife in the presence of her husband were admissible. It was held in Pugsley v. Smyth, 98 Or. 448, 194 P. 686, and Coles v. Harsch, 129 Or. 11, 276 P. 248, that communications made by one spouse to the other in the presence of third persons are not privileged and therefore should not be excluded. See also in this connection State v. Wilkins, 72 Or. 77, 142 P. 589. The weight of authority is that statements of a husband or wife made in the presence of the other and not denied are admissible. Annot., Ann. Cas. 1918C, p. 34; 22 C. J., Evidence, § 356, at p. 322; 31 C. J. S., Evidence, § 294, at p. 1059; 20 Am. Jur., Evidence, § 567, p. 480.

Mr. Billings is the uncle of the plaintiff, Mildred Boss. His home is at Eugene, Oregon. When he heard of the accident he left immediately with plaintiff’s mother for Klamath Falls, and arrived there late on the day of the mishap. He testified that Mr. Hayes, whom he had known for over 25 years, opened the conversation as to the accident. He further testified that Mr. Hayes stated to him that he, Mr. Hayes, “was going to pay for the nurses and pay for the doctor and the surgery, and he also emphasized at that time that if the doctors in Klamath Palls weren’t able to perform the necessary work that they would obtain specialists.”

The testimony as to the statements made by Mrs. Hayes in the presence of her husband was admissible in evidence under the almost unanimous ruling of the courts. No error was committed in admitting it. The weight to be given to it, however, is for the jury.

We shall revert now to the principal question in the ease, to wit, whether there was substantial evidence to support the charge of gross negligence on the part of defendant Hayes.

The complaint alleges that the defendant Hayes “was guilty of gross carelessness and negligence and reckless disregard of the rights of the plaintiff in the following particulars”: First, that he drove the automobile “ at a speed that was greater than was reasonable and prudent, having due regard to the traffic, surface and width of the highway and other conditions then existing”; second, that he drove the automobile at a speed that was greater than would permit him to exercise proper control of the vehicle; third, that he failed to keep and maintain a proper lookout for the condition of the road and the pavement at the time when he knew or should have known that the pavement was frosty and icy and dangerous to operate an automobile thereon except at a slow rate of speed; fourth, that he failed to keep and maintain a proper lookout for traffic on the highway; fifth, that he failed to drive his automobile on the right half of the highway; sixth, that he failed to observe and to heed the signs along the highway warning the motorist that the highway was “slippery when wet or frosty.”

Section 115-1001, O. C. L. A., reads as follows:

“No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator or caused by his gross negligence or intoxication or his reckless disregard of the rights of others.”

Plaintiff bases her right to recover against Hayes on the ground that he was grossly negligent in the operation of the Dodge automobile. The statute does not define the term “gross negligence”, nor has this court formulated a general definition of the term applicable to all cases. Storm v. Thompson, 155 Or. 686, 64 P. (2d) 1309. Whether the driver of an automobile should be held liable for gross negligence in its operation depends somewhat upon the particular circumstances of each ease.

In Rauch v. Stecklein, 142 Or. 286, 20 P. (2d) 387, “gross negligence” is defined as follows:

“* * * Thus, gross negligence is conduct which indicates an indifference to the probable consequences of the act. A motor-host who drives in a manner which indicates that he has no concern for consequences and an indifference to the rights of others is said to be guilty of gross negligence. The injury which he inflicts is not entirely inadvertent. His mental qualities, therefore, differ from those of another who is guilty of only ordinary negligence. The condition of mind of the driver who plunges on ahead, grossly negligent of the rights of others, may not be such that we can say that his tortious acts are wilful or wanton, but his mind is at least indifferent to the rights of others or displays those rash qualities exhibited by the foolhardy.”

The foregoing excerpt has been quoted with approval in Hartley v. Berg, 145 Or. 44, 25 P. (2d) 932; Younger v. Gallagher, 145 Or. 63, 26 P. (2d) 783; Monner v. Starker, 145 Or. 168, 26 P. (2d) 1097, and Monner v. Starker, 147 Or. 118, 31 P. (2d) 1109. See also Layman v. Heard, 156 Or. 94, 66 P. (2d) 492, where it is said that “we remain entirely satisfied” with the conclusion reached in Rauch v. Stechlein, supra.

This court in Lee v. Hoff, 163 Or. 374, 97 P. (2d) 715, had before it for consideration an instruction which, after giving a general definition of gross negli gence, concluded with these words: “It is something more than inattentions; in fact, it is the exhibition in the operation of a car of an I-don’t-care-what-happens mental attitude. ’ ’ It was there said that the foregoing statement was not erroneous and finds support in Storm v. Thompson, supra; Monner v. Starker, 145 Or. 168, 26 P. (2d) 1097; Cockerham v. Potts, 143 Or. 80, 20 P. (2d) 423; Rauch v. Stecklein, supra, and Storla v. S. P. & S. Trans. Co., 136 Or. 315, 297 P. 367, 298 P. 1065.

Mere proof that the driver of the automobile was guilty of ordinary negligence iu the operation of the ear does not require in all cases the submission to the jury of the question of whether he was guilty of gross negligence. “If in every instance where a guest succeeds in producing some evidence of ordinary negligence, as he has in the present instance, the court is required to submit to the jury the issue as to whether he has proved gross negligence, the above section o£ our laws will be deprived of a part of the usefulness which was expected of it.” Rauch v. Stecklein, supra.

In the ease at bar there is a total failure of proof of gross negligence on the part of defendant. The manner in which he operated the automobile did not indicate an indifference on his part to the probable consequences of his act or to the rights of others. Nothing connected with his driving resembled “an-T-don’t-eare-what-happens mental attitude.”

There is no evidence that any protest was made of the manner in which Hayes was driving after they left the snow-covered highway. Statements made by Mrs. Hayes, with the exception of what was said about Mr. Hayes’ driving on the wrong side of the highway, relate to the occasion when Mr. Hayes attempted to pass the truck. Before this last-mentioned happening the Hayes party had traveled a distance of at least 45 miles over a roadway covered with snow without incident. The place where Mr. Hayes started to pass the truck was east of the mountains in a flat, level country. Failure of Hayes to drive his automobile on the right half of the highway did not, under the circumstances here existing, constitute negligence as a matter of law. Weinstein v. Wheeler, 135 Or. 518, 295 P. 196; Hartley v. Berg, supra.

Miss Ross was 21 years of age at the time of the accident and had driven an automobile since she was 18 years old.

The conclusion which we have reached in this case is not at variance with Layman v. Heard, supra, or Melcher v. Adams, 174 Or. 75, 146 P. (2d) 354, where, in each ease, it was held that there was substantial evidence of gross negligence. In Layman v. Heard, supra, the court, after referring to prior decisions of this court defining gross negligence, said:

“ * * * Without reviewing these definitions once more, we express the belief that a driver who operates a car, some of the tires of which are smooth, at a speed of 40 to 55 miles per hour, over a roadway upon which icy stretches are occasionally encountered, is driving in a manner which can properly be deemed grossly negligent.”

The foregoing quoted excerpt must be read in connection with the facts of the case. It appears that before the defendant started on the trip, his father had told him that “it is going to be icy this morning; you had better be careful how you drive. ’ ’ There were three in the automobile: plaintiff, defendant, and his sister, Mrs. Peterson. Both the plaintiff and Mrs. Peterson protested many times to the defendant about the speed at which he was driving. This seemed to make him angry and instead of slowing down he drove faster. Before the accident, which occurred' on an icy stretch of the highway, they had passed over five or six other icy places. The ice on the highway where the accident occurred was seen clearly a distance of 150 feet ahead of the car.

Adams v. Melcher, supra, also involves an accident which occurred on an icy stretch of the highway. In that case the plaintiff and defendant were returning from a trip to the coast and were near Portland when the mishap occurred. On the day of the accident there was “ice all along the sides of the road” between Portland and the Coast Range mountains. There were also according to the plaintiff’s testimony “icy places” on the pavement, and the car had skidded on the ice at least once only a short distance from the place of the accident. The plaintiff had warned the defendant many times that he was driving too fast and requested him to reduce his speed. Each time the defendant, when requested, would slacken his speed and then shortly afterward resume the rate of travel to which the plaintiff objected.

In our opinion the circuit court erred in refusing to grant defendant Hayes’ motion for a directed verdict. The judgment appealed from is therefore reversed and the cause remanded to the circuit court with directions to set aside the judgment against defendant Hayes and to enter judgment in his favor.