West v. Kern

¶1Petition for Rehearing.

¶2(171 Pac. 1050.)

¶3Messrs. Wilbur, Spencer & Beckett and Mr. F. C. Howell, for the petition.

¶4Messrs. Malarkey, Seabrook & Dibble, contra.

¶5Department 1.

¶6Defendant’s petition for a rehearing is directed chiefly to so much of the opinion of the court as holds that ownership of the car is sufficient to make out a prima facie case as to the responsibility of the owner for the acts of the driver of the car.

¶73, 4. The opinion of Mr. Justice Harris is in entire harmony with that of Mr. Justice Bean in Dalrymple v. Covey Motor Car Co., 66 Or. 533, 541 (135 Pac. 91, 48 L. R. A. (N. S.) 424), on which defendant relies. In every case where a plaintiff sues to recover damages for injuries sustained in a collision with an auto*258mobile, the burden devolves on plaintiff to prove that the automobile was negligently operated and that the defendant is responsible for the acts of the driver. Unless he makes out a prima facie case on these propositions, he is not entitled to go to the jury. The foregoing are the ultimate questions to'be determined, but proof that defendant is the owner of the automobile creates a presumption from which the jury may infer that the automobile at the time of the accident was being used for the defendant’s purposes and that the driver was the defendant’s agent. The opinion of Mr. Justice Bean in Dalrymple v. Covey Motor Car Co., 66 Or. 533, 541 (135 Pac. 91, 48 L. R. A. (N. S.) 424), logically supports the conclusions of Mr. Justice Harris. It is held in the Dalrymple case that proof of ownership of the automobile is helpful in determining the ultimate question of responsibility for the acts of the driver. That only is helpful in determining an issue of fact which is evidence in support of the contention of one or the other of the parties. If plaintiff in the instant case offered any evidence tending to show the responsibility of the defendant for the acts of Lopez and Lawrence R. Kern, he was entitled to go to the jury on this question.

¶85. An automobile is a valuable piece of personal property. It is ordinarily driven by the owner or his agent. Proof of ownership therefore logically tends to prove responsibility of the owner for the acts of the party in charge. If, as is suggested in the petition, the automobile is stolen while the owner is away from home, the owner is able to prove this fact. The rules of law on the subject of the burden of proof have for their purpose the establishment of the material facts in the most convenient way. In the administration *259of justice it is often wise to place the ultimate burden of proof on the party best able to sustain it.

¶9Where goods are intrusted to a carrier in good condition and delivered by it in bad condition, the burden is on the carrier to show that the injury was caused by some force or agency for which the carrier is not responsible: Wells v. Great Northern R. Co., 59 Or. 165, 174 (114 Pac. 92, 116 Pac. 1070, 34 L. R. A. (N. S.) 818). Where a debtor transfers his property to a near relative to the disadvantage of his creditors, the burden devolves on the grantee to show that the transfer was made in good faith and for a valuable consideration: Marks v. Crow, 14 Or. 382, 395, 396 (13 Pac. 55); Mendenhall v. Elwert, 36 Or. 375, 384 (52 Pac. 22, 59 Pac. 805); Wright v. Craig, 40 Or. 191, 195 (66 Pac. 807). Proof that defendant owns a railroad creates a presumption that defendant is operating the railroad: Peabody v. Oregon Ry. & Nav. Co., 21 Or. 121, 134 (26 Pac. 1053, 12 L. R. A. 823). In all these cases the party most familiar with the facts and best able to furnish the evidence is charged ultimately with the burden of proof.

¶10A citizen who is injured by an automobile negligently operated is usually uninformed as to the party operating the car. If, in maintaining the burden of proof as to the owner’s responsibility, he were denied the benefit of the presumption arising from the ownership of the car, in many cases he would fail although under the facts entitled to prevail.

¶11It is usually possible for the party injured to prove the ownership of the car by which he is injured. The car is required to carry a conspicuous number plate: Laws of 1917, p. 264. By the aid of this number the ownership of the car may be determined from the public records: Laws of 1917, pp. 261, 262.

¶12*2606. If it be held that on proof of negligence and proof that defendant owns the car the burden of proof shifts, the right of a plaintiff with a meritorious case is protected.

¶13On the other hand, the defendant is well able to show that the car was driven by a stranger or on an errand having no connection with defendant’s business if such be the fact. The rule announced in the former opinion therefore tends to the convenient ascertainment of all the facts material on the question of liability.

¶14It is true, as contended by defendant, that juries are often influenced by sympathy for a plaintiff who has sustained a personal injury and that they do not always weigh evidence discriminatingly in personal injury cases. The remedy for this situation is to be found in a better appreciation by jurors of the obligations of their oath and of the importance of their functions. The rules of law cannot be based on the assumption that jurors will disregard their duty.

¶15In the respects above noted and in the other respects in which it is attacked we are satisfied of the soundness of the former opinion, and it is adhered to.

¶16Behearing Denied.