Anderson v. Finzel

• Decision Date: 13 April 1955
• Citation: 282 P.2d 358,204 Or. 162
• Parties: Frederick B. ANDERSON, Appellant, v. Walter Max FINZEL, Respondent.
• Court: Oregon Supreme Court

Page 358

282 P.2d 358

204 Or. 162

Frederick B. ANDERSON, Appellant, v. Walter Max FINZEL, Respondent.

Supreme Court of Oregon.

Argued and Submitted March 10, 1955.

Decided April 13, 1955.

Francis F. Yunker, Portland, for appellant. On the brief were Yunker, Fewless & Hannam, Portland.

Howard K. Beebe, Portland, for respondent. With him on the brief were Alfred A. Hampson, Jr., and Maguire, Shields, Morrison & Bailey, Portland.

Before TOOZE, Acting C. J., and ROSSMAN, LATOURETTE and PERRY, JJ.

TOOZE, Acting Chief Justice.

This is a damage action for personal injuries alleged to have been caused by the negligent operation of a motor vehicle, brought by Fredrick B. Anderson, as plaintiff, against Walter Max Finzel, as defendant. Judgment of involuntary nonsuit was entered against plaintiff, and he appeals.

The accident involving plaintiff occurred on January 1, 1952, about 5 p. m., at the intersection of S.E. Powell boulevard and S.E. 52nd avenue in the city of Portland, Oregon. Traffic at that intersection is controlled by electric traffic lights.

Plaintiff was a deputy sheriff or Multnomah county, having the rank of sergeant, and worked out of the sheriff's office in the county courthouse at S.W. Salmon street and S.W. 4th avenue in Portland. He commanded the shift of deputy sheriffs that went on duty daily at 4 p. m.

On January 1, immediately after he went on duty, plaintiff was notified that a possibly fatal accident had occurred at S.E. 122nd avenue and S.E. Powell boulevard, a distance of approximately nine miles from the courthouse. The radio dispatcher had given notice of the accident not only to the sheriff's office, but also to a deputy sheriff stationed in a district near the scene of the accident, and to the ambulance company.

Plaintiff is skilled in first-aid treatment, although his duties were strictly those of a deputy sheriff. Upon receiving notice of the accident, plaintiff and deputy sheriff Miller (also a sergeant) left at once in separate cars for the accident scene, plaintiff being followed by Miller. They proceeded from the courthouse south to the Ross Island bridge, which crosses the Willamette river, and then easterly out S.E. Powell boulevard.

At the time plaintiff's motor vehicle was equipped with electric red lights on the front, which were burning, and he also was operating his siren. The same is true as to sergeant Miller, who was following plaintiff at a distance of 75 to 100 feet.

As plaintiff immediately approached the intersection at S.E. 52nd avenue, the traffic light was red to all traffic proceeding easterly and westerly along S.E. Powell boulevard and green (or the go sign) to all traffic proceeding northerly and southerly on S.E. 52nd avenue. Several cars proceeding easterly on S.E. Powell boulevard (in both the inner and outer lanes of traffic--the street being a four-lane highway) had stopped for the light. Without stopping or decreasing speed, plaintiff operated his motor vehicle to the left of the stopped cars and into the west-bound lane of traffic, and continued on easterly into the intersection where a collision occurred between his vehicle and the motor vehicle of defendant. Defendant was proceeding southerly, with the traffic light in his favor. Plaintiff testified that he looked before entering the intersection, but did not see defendant's car until immediately before the impact between the two vehicles. As a result of the accident, plaintiff suffered severe personal injuries.

The order of involuntary nonsuit was granted by the trial court upon the ground that plaintiff was guilty of contributory negligence as a matter of law by proceeding into the intersection against the red traffic signal without first stopping and without reducing the speed of his vehicle.

It is plaintiff's contention that firemen and police officers are vested with official discretion which may not be deemed to be abused by violating statutes and ordinances regulating traffic upon the public highways; that motor vehicles of the police department while being used for emergency purposes and displaying the required lights and sounding a siren or other audible warning are exempted from the rules of the road.

It is manifest that in operating his motor vehicle into the intersection against the red traffic light, plaintiff was guilty of negligence per se (such conduct being expressly prohibited by law), unless because of his status as a police officer he had the authority under the circumstances to disregard the established rules of the road. He maintains that he was operating an emergency vehicle upon such an emergency as excused him for noncompliance with the statutory rules.

Section 115-301(d), O.C.L.A., as amended by ch. 279, Oregon Laws 1947, ORS 483.002(1), provides:

'(d) 'Authorized emergency vehicle.' Vehicles of the fire department, fire patrol, police vehicles, emergency vehicles of municipal departments or public service corporations and ambulances while being used for emergency purposes and displaying the required lights and sounding a siren or other audible warning.'

Section 115-302, O.C.L.A., ORS 483.990, provides:

'(a) It shall be unlawful and unless otherwise declared herein with respect to particular offenses it shall constitute a misdemeanor for any person to fail or neglect to comply with any rule or regulation declared in this act.'

Section 115-304, O.C.L.A., ORS 483.032, in part reads as follows:

'The provisions of this act applicable to the drivers of vehicles upon the highways shall apply to the drivers of all vehicles owned or operated by the United States, this state or any county, city, town, district or any other political subdivision of the state, subject to such specific exceptions as are set forth in the motor vehicle laws of this state with reference to authorized emergency vehicles.' (Italics ours.)

Under the express provisions of this section of the motor vehicle code, the drivers of all vehicles owned or operated by the county of Multnomah are rendered amenable to the rules of the road, with certain specific exceptions set forth in the code itself and applicable to the drivers of authorized emergency vehicles. This, in effect, amounts to an express prohibition against recognition of any exceptions other than those to be found in the motor vehicle code.

Section 115-311, O.C.L.A., ORS 483.128, provides:

'It shall be unlawful for the driver of any vehicle or for the motorman of any street car to disobey the instructions of any official traffic sign or signal placed in accordance with the provisions of this act, unless otherwise directed by a police officer.' (Italics ours.)

Section 115.312, O.C.L.A., as amended by ch. 344, Oregon Laws 1951, ORS 483.130, in part provides:

'(1) Whenever traffic is controlled by traffic control signals exhibiting the words 'Go', 'Caution' or 'Stop' or exhibiting different colored lights successively one at a time, or with arrows, said light, arrows and terms shall indicate and apply to drivers of vehicles and pedestrians as follows:

'(a) Green alone or 'Go'. Vehicular traffic facing the signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn but vehicular traffic shall yield the right of way to pedestrians and other vehicles lawfully within a crosswalk or the intersection at the time such signal is exhibited. Pedestrians facing the signal may proceed across the roadway within any marked or unmarked crosswalk.

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'(c) Red alone or 'Stop'. Vehicular traffic facing the signal shall stop before entering the nearest crosswalk at an intersection or at such other point as may be designated by the proper traffic authority, and remain standing until green or 'Go' is shown alone, or may when red or 'Stop' is shown alone, after stopping, turn to the right or left, as set forth in subsection (2). No pedestrian facing such signal shall enter the roadway.'

The speed limits and designated...