Taylor v. Bohemia, Inc.

688 P.2d 1374, 70 Or. App. 143
CourtCourt of Appeals of Oregon
DecidedSeptember 26, 1984
Docket16-81-03627; CA A28404
StatusPublished

This text of 688 P.2d 1374 (Taylor v. Bohemia, Inc.) 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. Bohemia, Inc., 688 P.2d 1374, 70 Or. App. 143 (Or. Ct. App. 1984).

Opinion

ROSSMAN, J.

Plaintiff appeals a jury verdict in favor of defendants in his action to recover for injuries he suffered when he was struck by defendants’ automobile while bicycling. Because we find that plaintiff was prejudiced by an erroneous jury instruction, we reverse.

On November 20, 1980, at about 6:30 p.m., plaintiff was westbound on his bicycle on 18th Avenue in Eugene, near its intersection with Jackson Street. In this particular vicinity, 18th Avenue consists of a primary traffic lane in each direction running down the center of the street, bicycle lanes located on both sides of the two primary lanes and a parking strip next to each curb. Jackson Street enters 18th on the south side only, forming a T intersection. On the night in question, plaintiffs bicycle was equipped with rear reflectors and a generator light which was lit only when the front wheel was turning. As plaintiff approached Jackson Street, he moved out into the westbound primary traffic lane, near the center line, in order to make a left turn. Because of a steady stream of eastbound cars on 18th, he was forced to stop in traffic and wait for an opening. He testified that he looked over his shoulder once or twice, but that he did not observe any cars within the block immediately behind him. While plaintiff was waiting, defendant Wright drove his car1 into him from behind, inflicting serious injuries.

Wright testified that he did not see plaintiff until the collision. The case was submitted to the jury in a special verdict form, which first asked whether defendants were negligent. Because the jury answered that question in the negative, it did not proceed to the other questions involving plaintiffs comparative fault and the amount of damages.

In his first assignment of error, plaintiff challenges the following jury instruction, to which he duly excepted:

“At the time and place of the collision, the Motor Vehicle Code of the State of Oregon provided: ‘A person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable.’ ”

[146]*146This instruction is basically a restatement of former ORS 487.765(1)(a) (repealed by Or Laws 1983, ch 332, § 11). Plaintiff argues that this instruction created the erroneous impression that he had no right to be in the lane of traffic in which the collision occurred.

Although the instruction was a correct statement of former ORS 487.765(1)(a), there was no reason for it to be given in this case. ORS 487.765(1)(a) pertains to situations in which a bicyclist is moving with the flow of traffic. Plaintiff was, at the time of the collision, in the process of turning left. In general, vehicle operators intending to turn left are required to approach and make the turn from the extreme left-hand lane lawfully available to traffic moving in the direction of the turning vehicle. ORS 487.390(2) (a) and (b). This general provision is made specifically applicable to bicycling by ORS 487.750(1), which provides that bicyclists are subject to the same provisions as cars, except when the provisions by their very nature can have no application. ORS 487.750(1) is not a provision which by its very nature can have no application to bicycles. Accordingly, we conclude that plaintiff was legally positioned in the westbound primary traffic lane when he was struck from behind.2

Inasmuch as plaintiff was under no legal obligation to remain to the right, the challenged instruction had no application to the facts of the case and was erroneous and prejudicial. See Biddle v. Mazzocco, 204 Or 547, 558-61, 284 P2d 364 (1955); see also Spence, Adm’x, v. Rasmussen et al, 190 Or 662, 226 P2d 819 (1951) (where, in the context of a case involving a bicycle that was struck from behind by an automobile, the Supreme Court held that it was reversible error to give an instruction about the necessity of bicycles having a headlight, because the purpose of the statute requiring headlights was to warn those coming head-on, not from behind).

Defendants contend that, even if the instruction was erroneous, it does not provide the basis for a reversal, because [147]*147it related to plaintiffs contributory negligence. It is argued that, because the jury found that defendants were not negligent, the issue of plaintiffs contributory negligence was not reached and any error in that regard was harmless. In support of this position, defendants cite several cases, all of which stand for the proposition that instructions on contributory negligence cannot constitute prejudicial error if the jury finds in a special verdict that the defendant was not negligent. See, e.g., Hatfield v. Gracen, 279 Or 303, 567 P2d 546 (1977); Abood v. Johnson, 38 Or App 305, 589 P2d 1206 (1979).

Defendants’ reliance on that rule is misplaced. Their position at trial was that Wright owed a duty of due care only to those people who were lawfully in the primary westbound lane of traffic. During closing statements, defendants argued, on the basis of the instruction, that plaintiff was legally required to remain to the right, even while turning, and that he, therefore, was positioned illegally at the time of the collision and was not entitled to the benefit of due care. Defendants further argued that, if plaintiff was not owed any duty of due care, defendants could not have been negligent by colliding with him. Because of the manner in which defendants used this instruction, we conclude that it did not relate only to plaintiffs contributory or comparative negligence. Rather, its use created the impression that defendants were free from negligence in the first place.3

In his next assignment, plaintiff also argues that the court erred by instructing the jury that

“* * * the statutory law of the State of Oregon at the time required that a person riding a bicycle shall, upon approaching or moving across an intersection, yield the right-of-way to any vehicle within or closely approaching the intersection.”

[148]*148This instruction is based on former ORS 487.780(1) (repealed by Or Laws 1981, ch 511, § 4), which provided:

“A person riding a bicycle commits the offense of failure to yield the right of way if upon approaching or moving across an intersection he does not yield the right of way to all vehicles within or closely approaching the intersection except:
“(a) Oncoming vehicles closely approaching from the opposite direction which are signaling an intent or starting to make a left turn at the intersection; or

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Related

SPENCE, ADM'X v. Rasmussen
226 P.2d 819 (Oregon Supreme Court, 1951)
Amick v. Watson
572 P.2d 317 (Oregon Supreme Court, 1977)
Hatfield v. Gracen
567 P.2d 546 (Oregon Supreme Court, 1977)
Ray v. Anderson
403 P.2d 372 (Oregon Supreme Court, 1965)
Biddle v. Mazzocco
284 P.2d 364 (Oregon Supreme Court, 1955)
R. J. Frank Realty, Inc. v. Heuvel
586 P.2d 1123 (Oregon Supreme Court, 1978)
Valdin v. Holteen
260 P.2d 504 (Oregon Supreme Court, 1953)
Abood v. Johnson
589 P.2d 1206 (Court of Appeals of Oregon, 1979)
Herinckx v. Hagen
605 P.2d 1372 (Court of Appeals of Oregon, 1980)

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Bluebook (online)
688 P.2d 1374, 70 Or. App. 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-v-bohemia-inc-orctapp-1984.