Raz v. Mills

372 P.2d 955, 231 Or. 220, 1962 Ore. LEXIS 363

• Court: Oregon Supreme Court
• Decided: June 27, 1962
• Status: Published

Opinions

GOODWIN, J.

This is an action for damages suffered in a collision between two automobiles. The jury rendered a verdict for the plaintiff. The defendant appeals from the ensuing judgment.

The plaintiff, Eileen Raz, was riding as a passenger in an automobile being driven by her husband in a northeasterly direction on Highway 99-W. The defendant, Ruth Mills, was driving a pickup truck on said Mghway in a southwesterly direction. The complaint alleges that the defendant negligently caused the pickup truck to collide with the Raz automobile, causing serious injuries to plaintiff. The specifications of negligence are as follows:

“1. In failing to keep her pickup truck under proper control.

“2. In failing to stop, turn or swerve to avoid colliding with the automobile in which plaintiff was a passenger.

“3. In failing to keep a proper lookout for the automobile in which plaintiff was a passenger.

“4. In operating her pickup truck at a speed that was greater than reasonable and prudent, having due regard to the traffic, the surface and width of the highway and other conditions then and there existing.

“5. In failing to drive her pickup truck on the right half of the highway when the left half of said highway was occupied by the automobile in which plaintiff was a passenger.

“6. In driving her pickup truck from the right half of the highway to the left half of said highway when such movement could not be made with safety.”

Defendant, by her answer, denies that she was negligent.

Assignment of Error No. I asserts that the trial court erred in denying a motion for a directed verdict. The defendant contends that the plaintiff failed to prove any one of the above-quoted allegations of negligence. Assignment No. II again challenges the sufficiency of the evidence by asserting error in the denial of defendant’s motion for judgment notwithstanding the verdict.

Assignments III, IV and V are all based on the contention that there was no evidence of unreasonable speed. In the respective assignments it is contended that the issue of speed should have been withdrawn from the jury; that the court should have instructed the jury to disregard the allegations of the complaint concerning speed; and that the court should not have instructed the jury regarding the basic speed rule (ORS 483.102 (1)).

Assignments VI and VII are based on the contention that there is no evidence to support the allegations of negligence in failing to drive on the right half of the highway. Assignment VI complains of the failure to Avithdraw those allegations of the complaint, and Assignment VII complains of the giving of an instruction concerning the duty to drive on the right half of the highway pursuant to ORS 483.302 and 483.304.

Assignment VIII relates to a ruling which struck out certain testimony.

The issues thus presented require us to determine, first, whether there was any evidence of negligence on the part of the defendant, as alleged in the complaint. If there was substantial ewdence of negligence in one or more of the particulars specified, then Assignments of Error I and II are without merit and the case was one for the jury.

Only four witnesses testified concerning the collision. They were the plaintiff, Eileen Raz, her husband, Henry Raz, a disinterested eyewitness, Robert Rummer, and the defendant, Ruth Mills. Mr. Rummer was following the Raz car.

Rain had been falling prior to the accident. The night was dark. The pavement was wet, and visibility was poor. Both cars were traveling with lights on low beam. To the witnesses, the pavement “looked shiny black.” It was slippery. At the point of impact the road was straight. The center line of the highway was marked with the nsnal painted line. The pavement was 20 feet wide. Both ears were in a zone where the indicated speed was 45 miles per hour. As they approached the scene of the collision, both cars were traveling “about 30 miles an hour.”

The collision occurred opposite a restaurant known as “Mary’s Garden”, which was on the south side of the highway. On the north side of the highway there were a filling station and a tavern. The lights were on at all three places. Mr. Raz said his lights at low beam would “show up a hundred feet or so.”

All witnesses agreed that just before the impact a pedestrian suddenly crossed the road in front of the Raz automobile in its lane, and then, without pausing, in front of the approaching Mills automobile in its lane. Simultaneously, of course, the two automobiles were closing upon one another at the rate of their combined speeds. There was a lack of precise agreement on the details of the pedestrian’s excursion between the two approaching automobiles, but all agreed that he was dressed in dark clothing and that he was visible only a short time. The persons in the Raz automobile said they saw the pedestrian on their right shoulder of the road and observed his passage to the other shoulder. Mr. Rummer said the pedestrian darted across “like the dickens.” Mrs. Mills said she saw him only during the fleeting instant before she depressed the brake pedal. She testified that when she first saw the pedestrian he was three feet from the center line in her lane of traffic and just in front of her left headlight. Mr. Raz testified that the pedestrian had cleared the roadway and was on the far side when Mr. Raz noticed the defendant’s truck coming toward him. The collision occurred in the lane of traffic occupied by the Eaz automobile. Defendant said she applied the brakes and her truck skidded across the center line.

It will be recalled that the first two assignments of error challenge the sufficiency of the evidence upon the question of negligence. Inasmuch as the collision occurred in the plaintiff’s lane of travel, we hold that the matter of negligence was a jury question. It is not necessary to decide in this case whether the manner in which the collision occurred constitutes the kind of circumstantial evidence which might, in the so-called res-ipsa-loquitur eases, relieve the plaintiff of the burden of proving a specific act of negligence. See cases discussed in Powell v. Moore, 228 Or 255, 364 P2d 1094. Here we have a specific act of negligence alleged (failure to remain on the right side of the road) and the allegation is supported by enough evidence so that the jury could find that this act of negligence was the proximate cause of the collision. On this point, moreover, the evidence was virtually undisputed. Failure to remain on the right side of the road would be a violation of the statutory duty imposed by ORS 483.302 and 483.306. If unexplained, the facts would establish a prima facie case for the plaintiff. Gum, Adm. v. Wooge et al, 211 Or 149, 159, 315 P2d 119; Wilson v. Bittner, 129 Or 122, 276 P 268, 64 ALR 132. Cf. Haltom v. Fellows, 157 Or 514, 73 P2d 680 (1937), where this court disapproved an instruction which told the jury the burden would be upon the defendant to justify his being on the wrong side of the road. While the burden of proof of negli gence ultimately lies with the plaintiff in such cases, Gum, Adm. v. Wooge et al, 211 Or, supra at 160, if the plaintiff is injured on the plaintiff’s side of the road, that fact alone is prima facie evidence of negligence upon the part of the defendant and, if unexplained, would be sufficient to support a verdict for the plaintiff. While Haltom v. Fellows recognized the truth of the foregoing proposition, it confused the defendant’s burden of going forward with evidence to meet a prima facie ease with the ultimate burden of proof which, of course, remains upon the plaintiff. As we said in Gum, Adm. v. Wooge et al, supra at 160:

“After the defendant has produced rebutting testimony and rested his case it is, ordinarily, for the jury, in deciding whether the plaintiff has carried his burden of persuasion, to determine whether the prima facie case which the plaintiff established has been weakened or destroyed. It is, of course, manifest that the burden of persuasion on the issue of defendants’ negligence rested throughout the case with the plaintiff. However, when the court was asked to direct a verdict for the defendants, it was required to determine whether the evidence produced by the defendants negated that which established the plaintiff’s prima facie case so conclusively that no reasonable man could any longer be justified in engaging in the inferences which established the plaintiff’s case.”

The foregoing explanation of the trial court’s duty upon a motion for a directed verdict applies equally to the facts of the case at bar. If reasonable minds could differ concerning the defendant’s explanation of the accident, then the case was one for the jury.

In the plaintiff’s case in chief, there was evidence that a pedestrian had crossed in front of the defendant’s truck, but sufficiently in advance of the truck so that a jury might have concluded that the defendant would not have been faced with an emergency if she had been keeping a proper lookout. The defendant, on the other hand, testified that she was keeping a lookout, but nevertheless discovered the pedestrian only when he was some twenty feet from her bumper. This evidence, of course, if believed by the jury, could support a finding that the defendant was faced with a sudden emergency. Thus, there was a jury question on the issue of the existence of an emergency. If the jury found that there was no emergency, evidence of the then unexplained violation of the defendant’s statutory duty to. remain on her own side of the road would certainly support a verdict for plaintiff.

The question of the emergency relied upon by the defendant naturally leads the inquiry into the matter of the defendant’s fault or freedom from fault in creating the emergency.

A defendant relying upon an emergency to explain his conduct must show that he was faced with a sudden danger, in light of which his conduct measures up to the standard required of a reasonable man faced with a similar emergency. See Restatement, 2 Torts 796, § 296 (1934). However, as we have said in a number of cases, a person whose own negligence contributes to the emergency cannot take refuge in the emergency to escape liability for his own fault. See, e.g., Cederoth v. Cowles et al, 224 Or 403, 412, 356 P2d 542. Thus, if the emergency relied upon by defendant came about in part because of her own failure to see the pedestrian sooner, i.e., to maintain a proper lookout, the emergency would be no defense. Because a defendant need not specifically plead the existence of an emergency, Tuite v. Union Pacific Stages et al, 204 Or 565, 595, 284 P2d 333, a plaintiff who is met with evidence of an emergency has the right to show that the emergency was caused in part by the defendant’s negligence, despite the fact that such negligence was not specifically alleged in the complaint. In the case at bar, then, evidence tending to show that the defendant failed to observe the pedestrian was competent as soon as the defendant introduced the element of emergency. Thus, the sufficiency of the defendant’s lookout became material in the jury’s consideration of the emergency even though general lookout, as such, was not pleaded in the complaint. It will be recalled that the plaintiff had not charged the defendant with negligence in failing to keep a general lookout for other persons using the highway, but “In failing to keep a proper lookout for the automobile in which the plaintiff was a passenger.” On this score, the evidence was uncontradicted that the defendant was watching the Raz automobile as it approached her. Thus, while the plaintiff had alleged in her complaint only a failure of a specific kind of lookout, she was entitled to the benefit of the defendant’s evidence relevant to general lookout, i.e., the kind of general lookout the defendant would need to maintain in order to be free from fault with respect to the emergency. It was therefore proper to instruct upon general lookout. If the defendant’s attention to her driving, i.e., general lookout, measured up to the standard of reasonable care so that she was not at fault in causing the emergency, then, if the jury should find that there was such an emergency, the defendant might be excused for her failure to remain on her own side of the road.

A driver must always maintain such lookout as a reasonably prudent person would maintain in the same or similar circumstances. Britton v. Jackson et al, 226 Or 136, 359 P2d 429; Smith v. Portland Traction Co., 220 Or 215, 349 P2d 286; Phillips, Gdn. v. Creighton, Adm., 211 Or 645, 316 P2d 302. At night there may be a question how long a reasonable driver would or could look into the glare of oncoming headlights to detect pedestrians crossing, or poised on the left shoulder of the road preparatory to crossing. Cf. Annotation, 22 ALR2d 292, 381. However, the reasonableness of the defendant’s lookout is a jury question.

If there was no negligence in the defendant’s lookout, as a jury could have found, then there may be a serious question whether the defendant’s speed can be said to be evidence of any conduct other than that of a reasonable person in the same circumstances. That question, however, was one for the jury. See McReynolds v. Howland, 218 Or 566, 346 P2d 127 (1959); Nicholas v. Fennell, 184 Or 541, 199 P2d 905 (1948).

In view of our decision that there was a jury question concerning the defendant’s speed, lookout, and control, we will comment only briefly upon the remaining assignments of error. It will be recalled that two specifications of negligence in the complaint dealt with defendant’s being in plaintiff’s lane at the time of the accident. One charged the defendant with driving into the wrong lane. The implication is that she drove over the line voluntarily. There is no evidence to support such an inference, and the allegation should have been withdrawn. There was, however, no doubt that the defendant crashed into plaintiff on plaintiff’s side of the highway. We fail to see how the jury could have been misled by the court’s oversight in failing to strike the surplus allegation. Negligence in failing to remain on the right side of the road was properly presented to the jury upon instructions concerning the effect of any emergency. The jury could not have found that the defendant drove over the line intentionally, and there is no reason to suppose that it did so find.

Finally, the defendant assigns error to the action of the court in telling the jury to disregard certain questions and answers tending to show that at a former trial the plaintiff had admitted making exculpatory statements to the defendant. If the plaintiff told the defendant prior to the litigation, “I don’t blame you for the accident,” it would be for the jury to decide whether such a statement was inconsistent with the plaintiff’s position at the time of trial. It was error to take the matter from the jury. Either party may, by proper cross-examination, develop prior inconsistent statements or admissions. Oxley et al v. Linnton Plywood Ass’n, 205 Or 78, 98, 284 P2d 766. Again, however, we can find no basis for saying the error was prejudicial. The trial court, in chambers, had properly warned both the plaintiff and defendant to be careful in connection with such out-of-court conversations, because there was a serious danger that one or more of the parties would blunder into the matter of insurance in a manner that would require the court to discharge the jury and begin over again. The testimony was proceeding into a dangerous area when the trial court told the jury to disregard it.

The real issue in the case was whether the defendant drove her truck in a negligent manner and whether such driving was the cause of the plaintiff’s injuries. We are satisfied that the parties received a fair trial and that the errors noticed were not prejudicial.

Affirmed.