Appeal from Circuit Court, Lincoln County. Eugene K. Richardson, Judge.
Thomas E. Wurtz, Springfield, argued the cause and filed briefs for appellant.
James C. Goode, Albany, argued the cause for respondent. With him on the brief were Goode, Goode, Decker & Hinson, Albany.
In Banc. O'Connell, C.J. Tongue, J., dissenting.
This is an action to recover damages for personal injuries suffered by plaintiff when defendant's automobile ran over plaintiff's leg. Defendant demurred
to plaintiff's complaint which was sustained and plaintiff appeals.
Plaintiff's complaint alleged in part as follows:
"That on or about the 6th day of April, 1972, at about the hour of 10:00 P.M. the Plaintiff was standing at the side of the automobile owned by Defendant, which was parked in the backyard of the residence of one Lou Chartrey, in Toledo, Lincoln County, Oregon, and Plaintiff was about to enter Defendant's automobile and had put one foot into the Defendant's automobile; that the Defendant abruptly moved the automobile which she was operating, and the Plaintiff's leg was jerked so that she was pulled under the Defendant's automobile and the wheel of said automobile ran over the Plaintiff's leg, causing the Plaintiff injuries as hereinafter more specifically set forth."
It is assumed by the parties that plaintiff's complaint was vulnerable to a demurrer if, on the facts pleaded, plaintiff was a guest within the meaning of ORS 30.115. ORS 30.115 provides as follows:
"No person transported by the owner or operator of a motor vehicle, an aircraft, a watercraft, or other means of conveyance, as his guest without payment for such transportation, shall have a cause of action for damages against the owner or operator for injury, death or loss, in case of accident, unless the accident was intentional on the part of the owner or operator or caused by his gross negligence or intoxication. * * *" (Emphasis supplied.)
It is plaintiff's position that she was not a guest because she was not being transported at the time of the injury. In some states statutes similar to ORS 30.115 have ...