Ashland v. Pacific Power & Light Co.

• Decision Date: 23 September 1964
• Citation: 397 P.2d 538,239 Or. 241
• Parties: Dorothy ASHLAND, Appellant, v. PACIFIC POWER & LIGHT CO., Hugh Carter and Mandiey Suess, Respondents.
• Court: Oregon Supreme Court

Page 538

397 P.2d 538

239 Or. 241

Dorothy ASHLAND, Appellant, v. PACIFIC POWER & LIGHT CO., Hugh Carter and Mandiey Suess, Respondents.

Supreme Court of Oregon, In Banc.

Sept. 23, 1964.

Decided Dec. 16, 1964.

Arthur C. Johnson and Johnson, Johnson & Harrang, Eugene, for the petition.

PER CURIAM.

The petition for rehearing is denied. The only part of the petition which requires comment is directed to our holding that the following instruction to which the plaintiff duly excepted was not erroneous:

'I instruct you that 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. I therefore [sic] instruct you that if at the time of the accident the stop sign would have been timely seen by a reasonably prudent person under the same or similar circumstances, then the defendant Carter would not be liable even though you found that the defendant Carter was negligent in some regard.'

The effect of the instruction was to inform the jury that if Suess, the driver of the car in which the plaintiff was riding, was negligent in failing to see the sign, Carter's negligence, if any, became irrelevant. On reconsideration of the question we are of the opinion that, if there was evidence that Carter was negligent, the jury might have properly found that the concurrent negligence of Suess and Carter caused the accident; for proximate cause is usually a jury question. But we are also of the opinion that there was no evidence that Carter was negligent.

In Lovins v. Jackson et al., 233 Or. 369, 378 P.2d 727, we said that these sign regulations are not intended to fix standards of care, but are merely directives to the employees of the State Highway Commission. The plaintiff in that case was an employee of the Commission who was injured when a motor vehicle collided with a State Highway Department truck on which the plaintiff was engaged in work incidental to the operation of sanding a highway. The defendant pleaded contributory negligence of the plaintiff in failing to comply with a regulation of the Commission which pequired the placing of 'Men Working' signs on the highway in the vicinity of the operation.

The regulation was adopted in pursuance of the Commission's general authority to 'provide a uniform system of marking and signing' highways in the state. ORS 483. 040. In the opinion the requirement of uniformity of signs was emphasized. That requirement is equally applicable to the instant case which, however, is governed also by ORS 483.204(1) which authorizes the Commission to 'designate main traveled or through highways by placing at the entrances thereto from intersecting highways signs and markers notifying drivers of vehicles to stop or yield the right of way before entering or crossing such designated highways * * *.' Subsection two of that section makes it the duty of the driver of a vehicle approaching from the direction which the stop sign faces to stop before entering the favored highway.

The legislature in conferring such power upon the Commission was concerned, of course, both with the safety of the traveling public and the expeditious movement of motor vehicles. But the regulation does not have the force or effect of law. It is only after...