Barnum v. Williams

• Decision Date: 14 December 1972
• Citation: 264 Or. 71,504 P.2d 122,96 Adv.Sh. 89
• Parties: Lawrence BARNUM, Appellant, v. Homer G. WILLIAMS, Respondent.
• Court: Oregon Supreme Court

Page 122

504 P.2d 122

264 Or. 71

Lawrence BARNUM, Appellant, v. Homer G. WILLIAMS, Respondent.

Supreme Court of Oregon.

Argued and Submitted June 6, 1972.

Decided Dec. 14, 1972.

Vincent G. Ierulli, Portland, argued the cause and filed a brief for appellant.

Ridgway K. Foley, Jr., Portland, argued the cause for respondent. With him on the brief were Souther, Spaulding, Kinsey Williamson & Schwabe and Gordon Moore, Portland.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, HOWELL and BRYSON, JJ.

DENECKE, Justice.

The plaintiff brought this action for damages for personal injuries allegedly incurred when the motorcycle he was driving collided with the car the defendant was driving. The jury found for the defendant and the plaintiff appeals, contending the trial court gave two erroneous instructions.

The collision occurred on a rainy day on Vista Avenue, in Portland. The plaintiff was going uphill and rounding an extremely sharp curve to his left. The defendant was coming downhill. Vista Avenue is divided into two lanes by a yellow line. The line is much closer to the curb on the defendant's side. The jury could have found that the impact occurred on or near the line or on the plaintiff's side of the line. The jury could also have found that when the defendant observed the plaintiff, the plaintiff was riding on the center line and leaning into the turn; the defendant in the narrow lane was near the center line and became apprehensive that they might collide; the defendant applied his brakes and slid into plaintiff's lane and collided with the plaintiff.

The trial court instructed the jury:

'In addition to common law negligence, there is also statutory negligence, which consists of the violation of a law which, for the safety or protection of others, requires certain acts or conduct or forbids certain acts or conduct. Where I call your attention to any such law, a violation of such law is negligence in and of itself; with this exception: If you find that, under all the attending circumstances, a statute cannot or should not be complied with by a person exercising reasonable care for the safety of himself and others, then I instruct you that you may find that the failure to strictly observe the statute should be excused and should not be deemed negligence.'

The problem posed by the instruction originates in the difficulties this court and others have had with the application of the statutory negligence per se doctrine.

We have repeatedly held that violation of a law or ordinance is negligence or contributory negligence in itself, i.e., per se. This has been an exception to the usual rule that whether one is negligent depends upon whether one acted as a reasonably prudent person. Under the negligence per se doctrine the question of whether the actor acted as a reasonably prudent person is irrelevant; the only question is, did the actor violate the statute?

Despite our stated adherence to the doctrine that violation of a statute is negligence per se, we could not submerge our deeply-rooted tradition that fault is the basis of liability in tort. In a defective brake case, we stated: 'We are now of the opinion that the motor vehicle code was not intended to eliminate the element of fault from the law of torts.' McConnell v. Herron, 240 Or. 486, 491, 402 P.2d 726, 729 (1965).

Early in the development of the tort law of motor vehicles we stated the doctrine that violation of a motor vehicle operation statute is negligence per se. At the same time, however, we engrafted the principle of fault into this doctrine. Marshall v. Olson, 102 Or. 502, 511--513, 202 P. 736 (1922). In the Marshall case the jury could have found that the defendant turned in violation of a city ordinance. The court observed: '* * * (I)t would be unreasonable to maintain that a man would be culpably negligent under such circumstances, if he turned either to the right or to the left to avoid imminent danger of collision, when the peril could be escaped only by such action, and that, too, without injury to any one else: * * *.' 102 Or. at 512--513, 202 P. at 739.

This line of reasoning was carried into cases in which one of the drivers went onto the 'wrong' side of the road. One such case is Gum, Adm. v. Wooge, 211 Or. 149, 158, 315 P.2d 119, 123 (1957), in which we said: 'Furthermore, the statute is not considered violated in instances when the driver, acting as a reasonably prudent person, turns to the left to avoid a collision with an approaching vehicle traveling in its wrong lane. * * *.'

Most, but not all, of our decisions on this issue have dealt with a situation in which the driver suddenly was faced with a vehicle, a pedestrian, or some other obstacle on his side of the road and reacted by turning into the 'wrong side' of the road in violation of the statute. In such cases we have approved instructions to the effect that violation of the statute requiring one to drive on his own side of the road is negligence per se; however, the driver is not negligent if he is faced with an emergency not of his own making and in turning onto the left side of the road acts as a reasonably prudent person would have acted when faced with a similar emergency. Harrison v. Avedovech, 249 Or. 584, 588--590, 439 P.2d 877 (1968).

The sudden emergency caused by someone or something in the driver's lane is the factor which most commonly makes a swerve to the 'wrong side' of the road the act of a reasonably prudent person. The rule, however, has not been and logically cannot be confined solely to such circumstances. ¹

The presence of an emergency does not change the standard of care; the standard remains reasonable care under the circumstances. If a party acts unreasonably in the face on an emergency, he is negligent; if he acts reasonably, he is not negligent. The emergency is simply one of the circumstances to consider in judging whether the actor behaved reasonably under the circumstances.

'The rule of reasonable care under all of the circumstances applies even in emergencies, the emergency being one of the circumstances to be considered.' Frangos v. Edmunds, 179 Or. 577, 607, 173 P.2d 596, 609 (1946).

In some of our cases in which a party acted contrary to a traffic statute the driver did not turn onto the 'wrong side' in response to an emergency but went onto the 'wrong side' for other reasons.

In Tokstad v. Lund, 255 Or. 305, 466 P.2d 938 (1970), the defendant was not faced with an emergency. He slid on packed snow across to the plaintiff's side of the highway. We held: 'There was evidence that although the defendant Lund was upon the wrong side of the road when he struck plaintiff's vehicle, the defendant, nevertheless, was acting as a reasonably prudent person.' 255 Or. at 307, 466 P.2d at 939.

The stated rationale for our decision, unanimous on this issue, was:

'A statute requires a driver to stay upon his own side of the highway and the law in this state is that a violation of a statute is negligence per se. Nevertheless, we have held that a failure to stay upon the right side of the road is not negligence per se if the offending driver went on the wrong side through no fault of his own. * * *.' 255 Or. at 306--307, 466 P.2d at 939.

In Mennis v. Highland Trucking, Inc., 261 Or. 233, 492 P.2d 464 (1972), the defendant was not faced with an emergency. The defendant was driving a log truck and was on plaintiff's side of the road when he collided with plaintiff. The defendant was on the 'wrong side' because the road was narrow and abruptly dropped off on the defendant's side. We held the defendant was not as a matter of law negligent and this issue was properly submitted to the jury. In so holding, we stated: 'Moreover, we have held that failure to drive on the right half of the road is not negligence per se if the driver was acting as a reasonably prudent person under the circumstances.'

Because excusing statutory violations solely in instances of emergency is illogical, we would be constantly urged and tempted to circumvent the rule. We continue to consider fault as the basis for imposing liability in automobile litigation. Courts are extremely loath to find a party who has acted reasonably to be negligent or contributorily negligent merely because the party acted contrary to a statute. Because of this ingrained reaction the courts are constantly being asked to create exceptions to the statutory negligence per se rule and the courts are doing so to avoid the seeming harshness of the negligence per se doctrine.

Our experience with this problem extends to cases involving statutory violations other than driving on the wrong side of the road.

In McConnell v. Herron, 240 Or. 486, 402 P.2d 726 (1965), we overruled Nettleton v. James, 212 Or. 375, 319 P.2d 879 (1958), and held that even though a truck operator was driving with brakes that did not comply with the statute, he was not necessarily negligent. In Dimick v. Linnell, 240 Or. 509, 402 P.2d 734 (1965), we were called upon to consider the so-called 'justifiable violation' exception to relieve a pedestrian from contributory negligence who was walking on the 'wrong side' of the road. We did not reject the exception, but found it inapplicable under the facts.

There is no rational basis by which we can hold that in certain instances violation of a statute is not negligence per se if the jury could find the party was acting reasonably, but in other instances violation of a statute is negligence per se regardless of whether the party was acting reasonably.

We consider the present state of the law to be that if a party is in violation of a motor vehicle statute, such a party is negligent as a matter of law unless such party introduces evidence from which the trier of fact could find that the party was acting as a reasonably prudent person under the circumstances. We so hold regardless of whether the circumstances do or do not include facts which the law regards as an...