Ashland v. Pacific Power & Light Co.

• Decision Date: 23 September 1964
• Citation: 239 Or. 241,395 P.2d 420
• Parties: Dorothy ASHLAND, Appellant, v. PACIFIC POWER & LIGHT CO., Hugh Carter, and Manley Suess, Respondents, and State Highway Department and W. O. Widdows, Defendants.
• Court: Oregon Supreme Court

Page 420

395 P.2d 420

239 Or. 241

Dorothy ASHLAND, Appellant, v. PACIFIC POWER & LIGHT CO., Hugh Carter, and Manley Suess, Respondents and State Highway Department and W. O. Widdows, Defendants.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 29, 1964.

Decided Sept. 23, 1964.

Arthur C. Johnson, Eugene, argued the cause for appellant. On the brief were Johnson, Johnson & Harrang, Eugene.

Sidney E. Thwing, Eugene, argued the cause for respondent Pacific Power & Light Co. On the brief were Smith, Rives & Rodgers and Gerald J. Norville, Portland.

Richard Bryson, Eugene, argued the cause for respondent Hugh Carter. On the brief were Calkins & Bryson, Eugene.

John L. Luvaas, Eugene, argued the cause for respondent Manley Suess. On the brief were Luvaas, Cobb & Richards, Eugene.

Before PERRY, P. J. and SLOAN, O'CONNELL, GOODWIN, DENECKE and LUSK, JJ.

PERRY, Justice.

This is an action brought by the plaintiff seeking damages for personal injuries claimed received in an automobile collision.

The plaintiff Dorothy Ashland was a passenger in an automobile being driven by the defendant Manley Suess which collided with an automobile being driven by a Mr. Chatfield, who is not a party to this action.

The defendant Hugh Carter was an employee of the State Highway Commission and was charged with the duty to install and maintain traffic control signs on state highways in Lane county.

The defendant Pacific Power & Light Company is a corporation engaged in the distribution of electricity in the state of Oregon.

After the issues had been tried, the trial court entered a judgment of involuntary non-suit in favor of the defendant Pacific Power & Light Company, and the jury returned verdicts in favor of the defendants Carter and Suess, upon which verdicts judgments were entered. From the judgments entered the plaintiff appeals.

The collision in which the plaintiff was injured occurred about noon August 7, 1961, at the intersection of Territorial Road and Bolton Road in Lane county. At the time of this occurrence, Territorial Road was a paved two-lane through arterial state highway running generally north and south. Bolton Road intersects Territorial Road in a rural area about 15 miles west of the city of Eugene. Territorial Road being a through highway, traffic entering from Bolton Road was directed by stop signs to stop before proceeding into the intersection.

The defendant Suess, driving in an easterly direction on Bolton Road in his station wagon, failed to stop before proceeding into the intersection and his vehicle was struck by a vehicle driven by Mr. Chatfield, which was proceeding southerly on Territorial Road.

We will first consider the plaintiff's contention that the trial court erred in granting the defendant Pacific Power & Light Company's motion for a judgment of involuntary non-suit.

The plaintiff charged the defendant Company with being negligent 'in constructing and maintaining the stubbed pole in a position that hid the view or interfered with the effectiveness of the Stop Sign' erected by the state highway commission which directed vehicular travel in an westerly direction on Bolton Road to stop before entering Territorial Road. The power pole was braced or supported by the placing of a short or stubbed pole on its westerly side in a perpendicular position and the power pole was fastened to the stubbed pole. It should be noted that this stubbed pole was lower than the stop sign itself so that the stubbed pole did not interfere with the view of the sign by the driver of an automobile approaching the intersection from the west.

The plaintiff's evidence discloses that the power pole never completely obscured the stop sign from the view of the driver of an automobile from a distance of 313 feet east of the sign, but that it was partially obscured until the driver reached a point 163 feet from the sign where the entire sign was clearly visible.

The plaintiff's position is that the Power Company owed to the traveling public a common-law duty not to obscure in any manner a stop sign, since such action would create a trap for the unwary traveler. Assuming this to be a valid argument, the argument would, in our opinion, only have merit if the facts disclosed that the Power Company had erected the obscuring object after the stop sign had been placed in operation. The evidence in the record discloses that the pole was placed and maintained in its position long before the stop sign was erected.

By statute, the right to designate the erection and location of stop signs is left entirely to the discretion of the State Highway Commission. ORS 483.040. At common law, an abutting landowner was not required to remove or guard against dangerous conditions which existed prior to the dedication of a highway. Restatement, 2 Torts 996, § 368.

By analogy, it appears to us that no duty is placed upon an abutting landowner to remove a lawfully constructed structure after the state through its commission has decided to erect a stop sign, even though the prior structure interferes with the operation of the sign.

The plaintiff also contends that the defendant Power Company violated ORS 483.138(1), which reads as follows:

'No person shall place, maintain or display upon or in view of any street or highway, any unofficial sign, signal or device which purports to be or is an imitation of or resembles an official traffic sign or signal, or which bears the words 'Stop,' 'Go Slow,' 'Caution,' 'Danger,' 'Warning' or similar words, or which attempts to direct the movement of traffic, or which hides from view or interferes with the effectiveness of any official traffic sign or signal.'

The plaintiff's position is that the word 'device' includes any obstruction that interferes with the 'effectiveness of any official traffic sign or signal.' It is clear from the context in which the word 'd...