Rieck v. Watt
This text of 633 P.2d 31 (Rieck v. Watt) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
This is an action for wrongful death arising from an automobile accident. On February 28, 1979, plaintiff’s decedent was traveling on Highway 58, a two lane highway, when he slowed or stopped his car and signaled his intention to turn left into his driveway. The defendant, driving his pickup truck and following plaintiff’s decedent and two other vehicles, pulled into the left, oncoming lane of the highway, passed the intervening vehicles and struck the car driven by plaintiff’s decedent as he made his turn.
Plaintiff’s complaint alleged the collision was caused by defendant’s negligence. Defendant alleged that the negligence of plaintiff’s decedent contributed to the accident. The jury, by special verdict, found that defendant had not been negligent in any of the respects submitted to it and did not reach the issue of contributory negligence. From a judgment entered in favor of defendant, plaintiff appeals. We reverse.
Prior to submitting the case to the jury, the court granted defendant’s motion to strike plaintiff’s allegation that defendant had been negligent in failing "to give any notice or warning by horn, or otherwise, of his approach as he undertook to pass the line of vehicles stopped behind decedent’s vehicle.” Plaintiff assigns error to the court’s order granting the motion and to the court’s failure to give a requested instruction on the duty to warn.
At one time, the driver of an overtaking motor vehicle had a statutory duty to give an audible warning before passing or attempting to pass another vehicle proceeding in the same direction. The driver of the overtaken vehicle had a reciprocal duty to give way to the right. See, e.g., Or Laws 1931, ch 360 § 29; Or Laws 1949, ch 198, § 1. The duty of the overtaking driver to sound a warning was repealed by the legislature in 1955. Or Laws 1955, ch 249, § 3. The duty of the driver of the overtaken vehicle to give way in favor of the overtaking vehicle "on suitable and audible signal” was similarly eliminated in 1975. Or Laws 1975, ch 451, §§ 27, 291.
Despite the repeal of the statutory duty, plaintiff contends there is a common law duty to sound a warning if [732]*732a prudent person exercising ordinary care would do so under the circumstances. Defendant argues that the statutory changes reflect a legislative intent that motorists are not required to use their horns while passing. The legislative history is inconclusive.1 At most, it demonstrates a decision that the passing driver’s duty to warn, if any, should not be statutorily mandated.
[733]*733Every motor vehicle must be equipped with a horn in good working order as a means of warning. ORS 483.446(1), (3). In Owens v. Holmes, 199 Or 332, 338, 261 P2d 383 (1953), a case involving a pedestrian, the court said:
"A horn on a motor vehicle is provided as a means of warning. Its use is required only when a warning reasonably appears necessary oris commanded by statute.” (Emphasis added.)
In Gano v. Zidell, 140 Or 11, 15, 10 P2d 365, 12 P2d 1118 (1932), another automobile-pedestrian case, the court observed,
"It is the duty of the driver of an automobile to sound the horn whenever in the exercise of reasonable vigilance an ordinarily prudent person would do so.” 140 Or at 15.
The case is reported in 24 ALR3d 183 (1969) for the proposition there is a common law duty to sound a warning when approaching a pedestrian in the absence of a specific statute calling for a warning or signal. In Archer v. Gage et al, 126 Or 532, 552, 270 P 521 (1928), the court in discussing the duty of a driver of a motor vehicle to sound a warning of his intended turn said, "no such duty is required by law. [There] are circumstances where it might be the duty of the driver to do so, but not invariably.” See Dixon v. Raven Dairy, 158 Or 186, 195, 75 P2d 347 (1938).
We believe the logic of the foregoing cases applies here. There is no absolute duty to sound a warning in every [734]*734instance. The driver of an automobile, however, has the duty to sound his horn whenever in the exercise of reasonable care an ordinarily prudent person would do so. See also Restatement (Second) of Torts § 302A (1965).2
It was error to remove plaintiff’s specification of negligence for failure to warn from the jury’s consideration. There was testimony that defendant was familiar with the highway and knew that there were numerous driveways along it. There was also evidence that defendant saw plaintiff’s decedent signaling a left turn at a distance of 100 yards prior to impact. A jury could reasonably conclude that defendant should have realized that passing without warning involved an unreasonable risk of harm. A jury could also conclude that a warning could have been given in time to avoid a collision.
Reversed and remanded.3
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
633 P.2d 31, 53 Or. App. 729, 1981 Ore. App. LEXIS 3209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rieck-v-watt-orctapp-1981.