Opinion
Argued March 12, 1930
Affirmed November 12, 1930
Appeal from Circuit Court, Coos County, JAMES T. BRAND, Judge.
Action by Grace Burns, administratrix of the estate of Carl E. Burns, deceased, against the Coast Auto Lines, a corporation. Judgment for plaintiff, and defendant appeals.
AFFIRMED.
Hall S. Lusk of Portland (Fred S. Bynon, Sr., of North Bend, and Emmons, Lusk Bynon of Portland on the brief) for appellant.
Walter C. Winslow of Salem (Claude H. Giles of Marshfield on the brief) for respondent.
This is an action for death by wrongful act brought by Grace Burns, administratrix of the estate of Carl E. Burns, deceased, against Coast Auto Lines, a corporation, engaged in the business of operating motor trucks as carriers for hire, and which, as a part of its business, transported the United States mail. The accident in which the decedent met his death occurred on January 9, 1929, on the Roosevelt highway about one mile south of the town of Denmark.
The complaint alleged that while the decedent was riding as a guest in an automobile, referred to as the "Studebaker," going south on the Roosevelt highway, the defendant's truck, which was coming from the opposite direction, was negligently driven to the left or west side of the highway, and that as the Studebaker approached said truck the latter was negligently driven back to the east side of the highway so as to obstruct the road and make it necessary for the Studebaker to take the extreme west side of the road and run across the soft, unsettled shoulder of a fill, whence it was precipitated over an embankment on the east side of the highway, resulting in the death of Carl E. Burns.
Defendant, by its answer, denied the allegations of negligence and alleged affirmatively that at the time of the accident its truck was engaged in carrying the United States mail and had crossed over to the left or west side of the road for the purpose of picking up a mail sack which was hanging on a mail box; that after doing so, the truck driver drove the truck back to his own right or east side of the highway and was met and passed by the Studebaker in which decedent was riding, which immediately prior thereto was being driven on the east or left side of the road and at such an excessive rate of speed that the driver thereof, in regaining his own side of the road, lost control of his automobile, with the result that it left the highway and plunged down an embankment on the east side thereof.
The answer averred the following specific acts of negligence as against Gustafson, the driver of the Studebaker: (1) That he drove his automobile on the left side of the highway; (2) that he drove his automobile at an unlawful rate of speed; (3) that he failed to keep said automobile under proper or any control. The answer also averred that decedent failed to remonstrate with the driver.
At the trial defendant was permitted to amend its answer so as to allege that decedent was engaged in a joint enterprise in the operation of the Studebaker, and to deny the allegation of the complaint that decedent was a guest. A jury trial resulted in a verdict for plaintiff and from the consequent judgment defendant appeals.
The defendant assigns that the circuit court erred in refusing to give the following instruction for which timely request was made by defendant:
"I instruct you that a passenger in an automobile must act as a reasonably prudent person under the circumstances in looking out for his own safety. If a passenger in an automobile knows, or reasonably ought to know, that the vehicle is being driven faster than is permitted by law, and if, realizing the situation, he fails to make any protest or to give any warning to the driver in thus operating such automobile in violation of law, then the passenger adopts the negligence of the driver as his own, and if the negligence of the driver contributed to the accident and the passenger is killed, his estate cannot recover for his death."
Defendant also reserved an exception for failure of the court to give the following requested instruction:
"So, likewise, if a passenger in an automobile knows that the vehicle is being driven on the wrong side of the road, or that the driver is not keeping such automobile under proper control, and if, realizing the situation, he fails to make any protest or give any warning to the driver in thus operating such vehicle in violation of law, then the passenger adopts the negligence of the driver as his own, and if the negligence of the driver contributed to the accident and the passenger is killed, his estate cannot recover for his death."
In lieu of the instructions set out above the court charged the jury upon the points therein involved, as follows:
"A passenger is bound to exercise such care for his own safety as would be exercised by a reasonable man under the circumstances; that if he had a reasonable opportunity to learn of danger and to avoid it, it would be his duty to perform such act of remonstrance or control, if any, as a reasonably prudent man would exercise under the circumstances, one of the circumstances being that such reasonably prudent man was a passenger and not the driver, and if Burns failed so to act and if such failure proximately contributed to the injury, he could not recover."
The defendant claimed that the driver of the Studebaker automobile was running at an excessive rate of speed and that plaintiff's decedent failed to caution or protest to the driver.
Since the briefs in the present case were printed, an opinion in the case of Ramsdell v. Frederick, 132 Or. 161 ( 285 P. 219), was rendered by this court, which opinion plainly prescribes the instructions to a jury as to the duty of a passenger riding in an automobile. In an opinion by the late Mr. Justice McBRIDE, it was held as follows: "We think it is a question of fact for a jury, as to whether the failure to remonstrate, under a particular set of circumstances, is negligence as a matter of fact." The instruction in the latter case was, in substance, like the one given by the learned circuit judge in the instant case. See also Perry v. Pickwick Stages of Oregon, 117 Or. 598 ( 243 P. 787); Casto v. Hansen, 123 Or. 20 ( 261 P. 428); Red Top Taxi Co. v. Cooper, 123 Or. 610 ( 263 P. 64).
Finding no error of the court, the judgment of the circuit court is affirmed.
COSHOW, C.J., BROWN and BELT, J.J., concur.