Herinckx v. Hagen

605 P.2d 1372, 44 Or. App. 437, 1980 Ore. App. LEXIS 2230

• Court: Court of Appeals of Oregon
• Decided: February 11, 1980
• Docket: No. A7707-09522, CA 12697; No. A7707-09523, CA 12698
• Status: Published

Opinions

BUTTLER, P. J.,

These personal injury actions were consolidated for trial and appeal. The trial court submitted the question of contributory negligence to the jury, which found that plaintiffs’ negligence contributed 25 percent to their injuries. On motion for new trial plaintiffs contended the issue of contributory negligence should not have been submitted and that the court erred in the giving of an instruction on defendant’s negligence per se. From the order granting that motion, defendant appeals. Although we agree that plaintiffs’ contentions are well taken, we do not agree that a new trial is required; therefore we reverse and remand with instructions.

Briefly stated, the facts are that the plaintiffs, along with a large number of other people, were leaving the stadium following a performance of the Pendleton Roundup, and were walking on Aura Street en route to their car. As they were walking down the street facing in the direction from which plaintiffs had come, defendant, whose pickup truck was parked along the street, decided to back his truck down the street rather than proceed forward in a normal way. He proceeded to do so without sounding his horn or giving any other warning, and simply backed his vehicle down the street into the plaintiffs, who were walking in the same direction in which defendant was backing his vehicle. The accident occurred during the late afternoon of a clear, sunny day in September, 1975.

The plaintiffs, as defendant concedes, were in a place they had a right to be. In the absence of statute or ordinance to the contrary both pedestrians and vehicles have a right to use the street as a passage way. Jones v. Sinsheimer, 107 Or 491, 497, 214 P 375 (1923). The record does not disclose that the city of Pendleton had an ordinance to the contrary, requiring pedestrians to use a sidewalk.¹ These plaintiffs, like the bicyclist in Spence, Adm’x, v. Rasmussen et al., 190 Or 662, 226 P2d 819 (1951), were not under a duty to keep a lookout over their shoulder as they walked down the street. In Spence, the court said:

"* * * And, in any event, a bicyclist is not required to keep a lookout to the rear unless he is changing his course of travel. He has the right to assume, until he knows to the contrary, or until by the exercise of due care on his part he should and would have known to the contrary, that those coming from the rear will observe him and take such precautions as may be necessary to avoid colliding with him, and to act accordingly. Neither a pedestrian nor a bicyclist is required to take to the ditch every time a motor vehicle approaches from behind. * * *” 190 Or at 682-83.

The quoted rule is particularly apt where the defendant is backing his vehicle down the street; there is no evidence that plaintiffs had any reason to anticipate that anyone would attempt, or was attempting, such an act, and, in particular, to anticipate that anyone would attempt such an act without sounding his horn or giving some other warning.

On these facts, we hold as a matter of law that there was insufficient evidence to submit to the jury the defense that the plaintiffs were negligent in failing to keep a lookout to their rear or to use the narrow sidewalk.

Because we have concluded that contributory negligence should not have been submitted to the jury, we need not consider the instruction which related to defendant’s negligence as a matter of law; the jury found defendant negligent, and the only prejudicial effect of the instruction would have related to the apportioning of negligence. The result of removing plaintiffs’ negligence from the case is to require defendant to bear the full amount of the damages determined by the jury.

Accordingly, the plaintiffs are entitled to the full amount of the jury verdict without diminution for contributory negligence, but are not entitled to a new trial simply because the jury was permitted to apportion the parties’ negligence after determining the full extent of the plaintiffs’ damages.

Reversed and remanded with instructions to enter a judgment consistent with this opinion.

1 ORS 487.325 is not applicable, but even if it were the most that can be said is that defendant would have had the right of way on the street. However, he forfeited his right of way by his own negligence. Van Zandt v. Goodman et al., 181 Or 80, 179 P2d 724 (1947). That statute, as well as ORS 487.015 making it applicable to municipalities, did not become effective until July 1, 1976, after the accident. (Or Laws 1975, ch 451, § 291.)