Donald Thom v. Aubrey Lubrie Poss

278 F.2d 811, 7 A.L.R. 3d 275, 1960 U.S. App. LEXIS 4803

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 19, 1960
• Docket: 16567
• Status: Published

Opinions

ORR, Circuit Judge.

Aimed at the control of traffic within its borders, the state of Oregon has enacted a statute which reads in part:

“Turns at intersections. (1) The driver of a vehicle intending to turn at an intersection shall observe the following rules:

“(a) The approach for a right turn shall be made in the lane for traffic nearest to the right-hand side of the highway and the right turn shall be made as close as practicable to the right-hand curb or edge of the highway.” O.R.S. 483.316.

On the morning of April 7, 1956, appellee was driving a truck in a westerly direction on Burnside Avenue, a street in Portland, Oregon, and appellant was at the same time driving his car in the same direction on said avenue. At the intersection of Burnside and Grand Avenues, a collision occurred between the truck driven by appellee and the car driven by appellant. Suit was instituted by appellant against appellee charging negligence on the part of appellee in that he violated the provisions of the above quoted Oregon law by approaching the intersection of Burnside and Grand Avenues from the middle lane of a three lane Burnside Avenue and then making a right turn into Grand Avenue from said middle lane. A jury trial was had and a verdict rendered in favor of appellee. The sole specification of error relied on by appellant is that the court misdirected and misled the jury by giving the following instruction. It quoted the section of Oregon law heretofore set out in this opinion and then continued :

“Now, members of the jury, in determining whether or not the plaintiff in this instance did or did not violate this rule of law you should bear in mind the type of equipment that the defendant was driving, whether or not it be a private car or whether or not it be the truck as we see them on the highway and has been described in the evidence in this case. The important part of the act is that the turn shall be made as close as practicable to the right curb or edge of the highway.”

The statute in question is explicit in its requirement that two things be observed in making a right turn at an intersection. First, that the approach be made in the lane for traffic nearest the right-hand side of the highway. Then, having so approached, the second requirement comes into play, that the turn be made as close to the right curb or edge of the highway as practicable. The instruction given correctly states the second phase of the right turn operation but completely ignores the first. Granted that a vehicle has approached the intersection in the proper lane, then, of course, in making a right turn the important requirement is that the turn shall be made as close as practicable to the right curb or edge of the highway. In the case of a truck, because of its size an encroachment into the middle lane may be necessary. This could legally be done if the truck starts its turn in the right-hand lane and remains as close as practicable to the right-hand curb as the turn is made. However, an approach being made in the middle lane, a right turn from there violates the act and the jury should have been so informed because there was evidence in this case that appellee had approached the intersection in the middle lane and had traveled in that lane for at least one block before reaching the intersection.

Appellant testified that he followed appellee’s truck for a distance of a block or so before the intersection of Burnside and Grand Avenues was reached and that appellee’s truck was traveling in the middle lane. Appellee testified that his truck was some six feet from the right-hand curb, and partly in both lanes, when he started his right-hand turn; that he did not form his intent to make a right-hand turn before he reached the intersection; that he was confused as to the proper route to take; that he saw an officer and made the right-hand turn so that he could reach the point at which the officer was located and get directions from him. The credibility of the witnesses was for the jury. If they believed appellant, appellee violated the requirement that when a right-hand turn is to be made at an intersection, the approach shall be made in the right-hand lane.

The instruction given by the court ignored one portion of the act and overly emphasized the other thereby prejudicing the case of appellant which was bottomed on the theory that the appellee was negligent in making a right turn from an inside lane of a multi-lane street, cutting in front of appellant’s car which was proceeding in the same direction in the right-hand lane. If the jury believed appellant’s story, then appellee would be guilty per se by reason of his violation of the act. Appellant made no contention that appellee failed to turn as close as practicable to the right curb from the point from which he started. No testimony was given on that issue. The court’s instruction, therefore, emphasized that portion of the statute not involved in the dispute between the parties and ignored that portion upon which appellant’s whole case was founded.

Judgment reversed and cause remanded.