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Trotter v. McKellip

April 26, 1973

TROTTER, RESPONDENT,
v.
MCKELLIP, APPELLANT



Appeal from Circuit Court, Yamhill County. Kurt C. Rossman, Judge.

Sam F. Speerstra, Salem, argued the cause for appellant. With him on the briefs were Rhoten, Rhoten & Speerstra, Salem.

Raymond J. Conboy, Portland, argued the cause for respondent. With him on the brief were Garry Kahn, and Pozzi, Wilson & Atchison, Portland.

Howell, Justice. McAllister, Presiding Justice, and Denecke, Holman, Tongue and Bryson, Justices.

Howell

Plaintiff, defendant Mitchell McKellip, and several other young people attended a party after a football game. On the way home from the party, plaintiff was riding as a guest passenger in an auto driven by defendant McKellip. The defendant's auto went out of control when the driver attempted to avoid a collision with a vehicle driven by defendant Edward Campbell, and plaintiff was seriously injured. A jury returned a verdict for plaintiff against defendant McKellip and in favor of defendant Campbell. Defendant McKellip appeals.

The plaintiff alleged that the defendant was grossly negligent in driving at an excessive speed and failing to keep a proper lookout and proper control "after having consumed certain alcoholic beverages."

The defendant's answer consisted of a denial and the following affirmative defense:

"As a further and separate answer and defense this defendant alleges that at the time and place set forth in plaintiff's amended complaint the plaintiff was negligent in that she voluntarily rode as a passenger in said automobile driven by this defendant and knew or should have known of any condition of this defendant which she now alleges in her amended complaint."

There was evidence during the trial that the defendant had consumed beer at the party. The extent of the drinking was disputed.

At the conclusion of the testimony the plaintiff moved to withdraw the defendant's affirmative answer from the consideration of the jury. After some colloquy the plaintiff withdrew the allegation in her complaint relating to the defendant having consumed alcoholic beverages.

Because of the withdrawal of the plaintiff's allegation concerning consumption of alcohol, the court struck the affirmative defense of contributory negligence alleged in defendant's answer. The court then advised counsel that although the allegation regarding drinking was removed, evidence of intoxication was still relevant and might be considered by the jury as it related to the allegation of lack of control. ...


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