Welcome v. Nelson

507 P.2d 1147, 265 Or. 37, 1973 Ore. LEXIS 496

• Court: Oregon Supreme Court
• Decided: March 23, 1973
• Status: Published

Opinions

DENECKE, J.

While the plaintiff was walking across a street he violently came into contact with defendants’ car. In the forthcoming jury action the trial court granted defendants’ motion for a directed verdict. Plaintiff appeals.

The basis for the directed verdict was that plaintiff was contributorily negligent as a matter of law in failing to keep a lookout. The occurrence was on October 18 at about 5:00 p.m., PDT, while it was still light. It was dry. Plaintiff stepped from the curb and started to cross the street; however, there was traffic, so he stepped back and waited. The traffic started to clear but a car was coming from plaintiff’s left. When that car was past, plaintiff looked to his left, saw nothing, looked to his right, saw nothing, and started across and was starting to turn his head and look left again. He took four steps and traversed about 12 feet angling toward his left and then it happened. Plaintiff did not see defendants’ car which came from plaintiff’s left. Whether plaintiff was in an unmarked crosswalk is in issue but is irrelevant to the issue of lookout.

The jury could have found that a car was parked about 15 feet to plaintiff’s left on plaintiff’s side of the street. This prevented plaintiff from seeing anything immediately behind the parked car. However, plaintiff testified he could see left in the travel lane about three blocks. The street is 42 feet wide.

The defendant G-ordon Nelson came onto the street two or three blocks from the collision. The jury conld have found he was traveling slightly more than 30 miles per hour, the designated speed. He was traveling next to the center line and did not change his course. He did not see the plaintiff at the time of the collision but heard a crash on the side of his ear.

The defendants’ car suffered a dent where the right front door meets the fender and the antenna near that spot was broken. There was no damage to the front of defendants’ car. A witness who was driving in the opposite direction from defendants testified that plaintiff ran into the side of defendants’ car. The plaintiff did not know what part of the car he contacted.

We regard this as a close question; however, we have come to the conclusion that the trial court was correct.

In cases involving a collision between a train and a vehicle at a railroad crossing, we have held that if the train was visible, the driver was guilty of contributory negligence as a matter of law because either he did not look or he did not see what any reasonably prudent man would have seen. Olds v. Hines, 95 Or 580, 187 P 586, 188 P 716 (1920); McNealy v. Portland Traction Co., 213 Or 659, 327 P2d 410 (1958).

We have, however, expressly refused to apply this reasoning to cases in which the plaintiff was a pedestrian crossing a city street on a dark, rainy night and was hit by a motor vehicle. Martin v. Harrison, 182 Or 121, 180 P2d 119, 186 P2d 534 (1947); Barnes v. Winkler, 216 Or 130, 133-134, 337 P2d 816 (1959); Cummings v. Schunk, 249 Or 435, 439 P2d 13 (1968). Plaintiff relies upon these cases; however, we conclude they and others of our decisions to like effect are inapplicable. In the instant case, unlike those upon which plaintiff relies, the jury conld only find that the plaintiff walked into the side of defendants.’ vehicle and that it was light and plaintiff testified he conld see several blocks in the traveling lane of the street, the lane where defendants were driving.

① Upon the basis of these two factors we hold that either the plaintiff must not have looked before he stepped into defendants’ car or, if he did look, he failed to see what a reasonably prudent person would have seen.

Affirmed.

Plaintiff was explicit in his testimony, including his marking a diagram, that the parked car to his left did not block his view of the traveling lane. He testified he stayed off the curb because the parked car did block his view from such a position but from off the curb he could see down the street.