David W. Smith v. Herbert Malarkey Roofing Company, an Oregon Corporation

In the early pre-dawn morning (approximately 4:00 a. m.) of June 18, 1972, the windshield of the automobile which appellant David W. Smith was driving along North Columbia Boulevard in Portland, suddenly shattered causing a splinter of glass to enter Smith’s right eye, which resulted in permanent impairment of sight in that eye. Investigation proved that the cause of this unfortunate mishap was that Smith’s car had struck an airborne mallard duck or conversely that the mallard had struck Smith’s car. The rationale for this conclusion was the finding of the body of a deceased mallard at the scene of the accident and duck feathers and other parts inside Smith’s car. The question of negligence, or the degree thereof, attributable to the only participants involved in the accident, namely, the mallard and Smith, is not before us.

The scene of the accident was that portion of North Columbia somewhat adjacent to the plant of defendant-appellee, Malarkey Roofing Company (Malarkey). Since Smith is a citizen of Washington, Malarkey is an Oregon corporation and the amount in controversy exceeds $10,000, the federal courts have been chosen as the forum in which Smith seeks…