Henthorne v. Hopwood

345 P.2d 249, 338 P.2d 373, 218 Or. 336, 1959 Ore. LEXIS 306

• Court: Oregon Supreme Court
• Decided: April 29, 1959
• Status: Published

Opinions

LUSK, J.

This is an action for death by wrongful act, in which the plaintiff recovered a judgment and defendants have appealed. The deceased, Flossie M. Henthorne, while crossing 16th Street in Oregon City, was struck by an automobile driven by the defendant William B. Hopwood and owned by the defendant Burt Hopwood, and died as the result of the accident. The uncontradicted evidence shows that the deceased was crossing the street between intersections, and was struck when she was near the center of 16th Street and at least 40 feet from the nearest crosswalk at the intersection of Harrison and 16th Streets. The automobile had passed through the intersection immediately prior to hitting Mrs. Henthorne. The accident occurred about dusk; it was raining and the lights on the defendants’ car were burning. The jury could have found that the defendant, William B. Hopwood, was driving at an unreasonable rate of speed and that he was not keeping a proper lookout.

An ordinance of the city in effect at the time provided:

“Jay Walking: It shall be unlawful’ for any ■pedestrian to cross any of the streets in Oregon City, at any other' place than the- regular intersection crossing in line with the property line of said street, upon an area which would be covered by the sidewalk if extended.”

The deceased, in crossing the street at the place where she did, violated this ordinance and was guilty of negligence as a matter of law. The court so instructed the jury, but denied a motion of the defendants for a directed verdict and submitted to the jury the question whether the negligence of the deceased was the proximate cause of the accident. In this, we think the court erred.

The case is ruled by Leap v. Royce, 203 Or 566, 279 P2d 887, in which we held that a pedestrian was barred by his violation of a similar ordinance of the city of Portland from recovery for the negligence of a motorist. To the same, effect is Rosevear v. Rees, 77 Idaho 270, 291 P2d 856, 859. See, also, Lapuyade v. Pacific Employers Insurance Co., 202 F2d 494, 497. The ordinance was designed to prevent the very type of accident that occurred. As stated in Prosser on Torts (2d ed), p 286, “The accepted view now is that the plaintiff’s failure to exercise reasonable care for his own safety does not bar his recovery unless his injury results from the particular risk to which his conduct has exposed him.” It is clear in this case that the conduct of the deceased did expose her to the particular risk from which her injury resulted and that it was a substantial factor in such injury. See Leon Green, Contributory Negligence and Proximate Cause, 6 NCarLRev 3, and Prosser, op cit. Speaking of cases involving this question, Dean Prosser says:

“Such cases frequently say that the plaintiff’s negligence is not the ‘proximate cause’ of his own damage. It is, of course, quite possible that his conduct may not have been a substantial contributing factor at all, where the harm would have occurred even if he had exercised proper care. But in the usual case the causal connection is clear and beyond dispute, and no problem of causation is involved. What is meant is that the plaintiff’s conduct has not exposed him to any foreseeable risk of the particular injury through the defendant’s negligence, and therefore is not available as a defense.”

The plaintiff argues that the accident would have occurred even though the deceased had been in the pedestrian crosswalk at the time that she was hit. This is pure conjecture and without any foundation in the evidence.

Reversed.

McAllister, C. J., dissents.