Taylor v. Baughman

589 P.2d 1160, 38 Or. App. 179, 1979 Ore. App. LEXIS 2354
CourtCourt of Appeals of Oregon
DecidedJanuary 29, 1979
DocketNo. 22059, CA 10362
StatusPublished

This text of 589 P.2d 1160 (Taylor v. Baughman) 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.

Bluebook
Taylor v. Baughman, 589 P.2d 1160, 38 Or. App. 179, 1979 Ore. App. LEXIS 2354 (Or. Ct. App. 1979).

Opinion

RICHARDSON, J.

This is an appeal by plaintiff, a nine year old child, from a judgment entered on a jury verdict for defendant. The cause of action arose out of an accident wherein defendant’s automobile collided with plaintiff’s bicycle. Plaintiff, through his guardian ad litem, makes six assignments of error. In the first assignment plaintiff contends the court improperly denied a jury view of the accident scene. The remaining assignments of error relate to instructions given or refused by the court.

On the afternoon of October 8, 1976, plaintiff and his younger brother were riding tandem on plaintiff’s bicycle en route to a friend’s house. The weather was clear and the pavement was dry. The road on which they were riding passed a residential area containing approximately 16 houses, which were located on four to five acre lots. Defendant, who was familiar with the area and who had driven on this road many times, was proceeding at approximately 20 miles per hour. Shortly before the accident she observed a child standing near a mailbox in front of one of the residences. Her view up the road was obstructed by brush and other foliage. As she proceeded up the road she observed plaintiff approximately 20 feet ahead of her riding his bicycle toward her in her lane of travel. She applied her brakes and swerved but collided with the bicycle and plaintiff was injured.

The first assignment of error is that the trial judge improperly denied plaintiff’s motion for a jury view of the scene of the accident. The view was resisted by defendant on the grounds that a road sign, warning motorists to drive carefully, had been installed in the immediate vicinity since the accident and that there was a change in the vegetation along the roadway. The trial court found there was likelihood of prejudice to defendant if he granted the view and therefore denied plaintiff’s request. At trial plaintiff introduced pictures of the scene which were taken prior to any physical changes in the area.

[182]*182 The authority to grant or refuse a jury view under ORS 17.230 is within the discretion of the trial court and will not be upset absent a clear abuse of that discretion. Natwick v. Moyer, 177 Or 486, 498, 163 P2d 936 (1945); State v. Mershon, 1 Or App 314, 317, 460 P2d 363 (1969), rev den (1970). Where a material change has occurred in the area the motion for a view may be properly denied. Cox v. Rand, 155 Or 258, 262, 61 P2d 1240 (1937). We find no abuse of discretion.

Plaintiff contends, in his second assignment of error, that the court improperly refused, to give the emphasized portion of the following requested instruction:

"I instruct you that it is the continuing duty of a driver of a motor vehicle to keep and maintain a reasonable lookout for other vehicles or persons on the street or highway.
"A reasonable lookout means such as would be maintained by a reasonably prudent person under the same or similar circumstances.
"In determining this question you should take into consideration the extent or degree of danger reasonably to be expected. A person does not comply with the duty to keep a reasonable lookout by simply looking and not seeing that which is plainly visible and which would have been seen by a reasonably prudent person under the same or similar circumstances, particularly where the driver of a motor vehicle knows of the presence of a child or children in, near, or adjacent to the street or highway, or should know that children may reasonably be expected to be in the vicinity, as the driver is under a duty to exercise care, usually stated to be reasonable, ordinary, due or proper care, for the safety of the child or children. In such situations, moreover, a high degree of vigilance is required of a driver to measure up to the standard of what the law requires as ordinary care. ” (Emphasis added.)

Plaintiff cites Pope v. Heldman, 215 Or 703, 336 P2d 63 (1959), in support of the requested instruction.

[183]*183In Pope v. Heldman, supra, the issue was the propriety of a directed verdict in favor of the defendant. The injury to plaintiff, a five year old child, resulted from a collision between defendant’s automobile and plaintiff’s bicycle. Just prior to the collision defendant had observed plaintiff standing beside his bicycle on the side of the road. When plaintiff pushed his bicycle across the road he was hit by defendant’s vehicle. The Supreme Court quoted from several authorities including the following from 5A Am Jur, Automobiles and Highway Traffic, §436:

"A motorist who knows or should know that children may be reasonably expected to be in the vicinity must anticipate childish conduct. On discovery of the presence of small children on the highway one should travel at such a rate of speed, and bring his vehicle under such control, that an accident will be averted regardless of the unexpected and unforeseen movement of any of the children. One has no right to assume that a child, especially one of tender years, will exercise the discretion needed to protect it from the dangers of rapid automobile traffic. The law recognizes the fact that children are, depending upon their age, creatures of impulse, heedless of danger, and likely to imperil themselves without regard for consequences, and the recognition of this fact places upon the operator of a motor vehicle an extra burden of care and caution where children are involved * * (Footnotes omitted.) 5A Am Jur at 505-06

Based on this principle of law the court concluded it was error to direct a verdict for the defendant. Under the circumstances presented by the evidence it was for the jury to determine if defendant exercised reasonable care. That case did not involve the propriety of an instruction setting forth the "extra burden of care” where young children are involved.

Although not cited by plaintiff, Kroft v. Grimm, 225 Or 247, 357 P2d 499 (1960), indicates a court has the duty to instruct the jury regarding a defendant’s higher degree of care. That case was a personal injury action where plaintiff, a small child, was run over by [184]*184defendant’s truck. Plaintiff appealed a jury verdict for defendant. Plaintiff contended the court erred in refusing an instruction to the effect that the operator of a motor vehicle was under duty of exercising a high degree of care where a young child might be endangered. The Court had instructed the jury as follows:

"Now, ordinary negligence is the doing of that or the failure to do which a reasonably careful person would or would not have done under the same circumstances. It is just a common sense rule.
"Now, reasonable care, when danger to children is involved, may be a high degree of care depending on the circumstances. A reasonable person cannot expect the carefulness of conduct of a child that he would expect from an adult and, therefore, is required to use correspondingly more carefulness before he exercises due care. * * *” 225 Or at 251.

The court rejected plaintiff’s contention and held the instruction given by the court correctly stated the law. The court, after quoting from 5A Am Jur 505, Automobiles and Highway Traffic, §436 and 65 CJS 400, Negligence §12b (1950), stated:

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Related

Kroft v. Grimm
357 P.2d 499 (Oregon Supreme Court, 1960)
Hatfield v. Gracen
567 P.2d 546 (Oregon Supreme Court, 1977)
Pope v. Heldman
336 P.2d 63 (Oregon Supreme Court, 1959)
Natwick v. Moyer
163 P.2d 936 (Oregon Supreme Court, 1945)
Cox v. Rand
61 P.2d 1240 (Oregon Supreme Court, 1936)
State v. Mershon
460 P.2d 363 (Court of Appeals of Oregon, 1969)
White v. Milner Hotels, Inc.
518 P.2d 631 (Oregon Supreme Court, 1974)

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Bluebook (online)
589 P.2d 1160, 38 Or. App. 179, 1979 Ore. App. LEXIS 2354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-v-baughman-orctapp-1979.