Birks v. East Side Transfer Co.

• Decision Date: 20 February 1952
• Parties: BIRKS v. EAST SIDE TRANSFER CO. et al.
• Court: Oregon Supreme Court

Page 120

241 P.2d 120

194 Or. 7

BIRKS v. EAST SIDE TRANSFER CO. et al.

Supreme Court of Oregon.

Argued and Submitted Nov. 27, 1951.

Decided Feb. 20, 1952.

Howard K. Beebe, Portland, for appellant, Walter J. Cosgrave and Maguire, Shields, Morrison & Bailey, all of Portland, on the brief.

Robert A. Bennett and Walter H. Evans, Jr., Portland, for respondent, Robert A. Bennett and Krause, Evans & Korn, all of Portland, on the brief.

Before BRAND, C. J., and ROSSMAN, LUSK, LATOURETTE and WARNER, JJ. ROSSMAN, Justice.

This is an appeal by East Side Transfer Company from a judgment, based upon a verdict, which was entered against it. A second defendant, Clyde Hollenbeck, was absolved by the jury from the charges made in the complaint and is not a party to this appeal. The action out of which the challenged judgment arose was based upon charges of negligence made against both defendants and averments that, as a result of the negligence, the plaintiff suffered a personal injury.

According to the plaintiff-respondent, he was injured June 14, 1948, at 4:30 p. m., when a motorcycle which he was riding collided virtually simultaneously with an automobile which the defendant, Hollenbeck, was operating and a parked combination tractor and trailer which was owned by the defendant-appellant, East Side Transfer Company. Since Hollenbeck is not a party to this appeal, we shall, for purposes of convenience, refer to the defendant-appellant as the defendant. We shall also refer to the latter's vehicle as a truck.

The appealing defendant, East Side Transfer Company, submits only one assignment of error. It reads: 'The court erred in overruling appellant's motion for a directed verdict.'

In arguing in behalf of that assignment of error, the defendant submits these propositions:

'Plaintiff was guilty of negligence which caused or contributed to his injuries; and he is, therefore, barred as a matter of law.'

'Appellant's conduct in parking its vehicle was not the legal cause of plaintiff's injuries.'

'The negligent conduct of plaintiff and the innocent acts of Mr. Hollenbeck were independent, intervening forces which relieve appellant of liability.'

We shall now give a review of the evidence. Where the latter presents conflicts, we shall, as our duty requires, accept the version favorable to the plaintiff-respondent.

As we have said, the plaintiff sustained his injury when his motorcycle collided with an automobile which the defendant, Hollenbeck, was operating and a parked truck which was owned by the defendant. The mishap occurred in Portland upon Southeast 20th avenue at a point 120 feet south of the intersection of that thoroughfare and Hawthorne street. The plaintiff, riding his motorcycle, was proceeding south on 20th avenue and was overtaking Hollenbeck's car which was moving in the same direction. Ahead of these two vehicles was the defendant's truck. It had been backed across the sidewalk on the east side of 20th avenue and against a low embankment. While in that position the truck's driver and some helpers were loading the vehicle with heavy objects. The truck's total length was 34 feet and nine inches. It had occupied that position more than an hour before the mishap occurred.

The plaintiff was 30 years of age and had operated motorcycles for many years. He was familiar with Southeast 20th avenue. The day of the accident was dry and clear. Southeast 20th avenue, at the place with which we are concerned, is level. It is an arterial thoroughfare and carries a volume of traffic which the witnesses described as 'rather heavy' and 'very heavy.' At the situs of the accident the space between curbs is 30 feet, but immediately to the north the width is 35 feet.

An ordinance of the city of Portland reads as follows: 'No person shall permit a vehicle in his charge to remain backed to the curb of any street except while engaged in actually loading or unloading the same, and then only when it is absolutely necessary for the purpose owing to the weight or size of the merchandise being handled, and in no event shall it be permissible to allow such vehicle so to remain for a greater period than twenty minutes. The motive power attached to any vehicle so backed to the curb shall be turned parallel to the curb and in the direction in which traffic is required to be moved upon the same side of the street except that in case of a truck and trailer combination the truck shall be removed and parked separately.'

A glance at the accompanying sketch [which was not drawn to scale] may be helpful in understanding the facts.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The trailer part of the defendant's vehicle stood at an angle of about 90 degrees to the property line, but the tractor part faced in a northwesterly direction. The witnesses estimated the degree of the angle variously in the neighborhood of 30 to 45 degrees. The tractor part was 17 feet long. The defendant's driver conceded that he could have turned the tractor further so that it would have been parallel to the curb. The front of the tractor extended across the center line of the street, but no witness mentioned in feet or inches how far it projected beyond the center line. One of them expressed the situation in these words: 'The truck did protrude well into the center of the street. I would say past the point of center on the street.' Another described it in this manner: 'Extended over the center of the street. It took up more than half' of the street.

Across the street from the truck, that is, next to the west curb, was a row of parked cars. One of them was directly opposite the truck. The plaintiff, referring to the space between that parked car and the front of the truck, declared:

'I believe there was just barely room for a car to go through, which would be, I imagine, seven or eight feet, if that much.

'Q. You would estimate about eight feet of distance? A. Yes, sir.'

The only evidence upon the subject indicates that automobiles are about six or seven feet wide. Witnesses, in alluding to the space between the front of the truck and the opposite parked car, used terms such as 'the opening' and 'the hole.' Hollenbeck repeatedly employed the term 'the hole' and limned the resulting situation in these words: 'a one-way traffic condition.' The driver of the truck testified that during the hour or more in which it stood there 'a lot of cars and trucks' passed through the opening.

We have mentioned the fact that Southeast 20th avenue, at the place where the accident occurred, is 30 feet wide from curb to curb. One half of that space is 15 feet. Since the backed-up truck occupied more than 15 feet, there was less than 15 feet of unoccupied space in the west half of the street. If the car which was parked next to the west curb was six feet wide and stood a couple of inches from the curbstone, one can readily understand that the opening between the front of the truck and the left side of the parked car was approximately eight feet wide, and was less than eight feet if the parked car was more than six feet wide.

The plat which accompanies this opinion shows Hollenbeck's car, but no claim is made that it is placed in its exact position. Proceeding at a speed of about 15 miles an hour, it approached the opening from the north, but when Hollenbeck noticed two cars coming from the south that were about to enter the opening, he stopped and permitted them to go through. He thought that he was 'approximately 30 or 40 feet from the opening' when he stopped.

Evidently the backed-up truck and the cars across the street created a difficult situation, for we observe from the record that the men who were loading the truck diverted their attention from time to time to the traffic. Two of them were able to give impressions of the number and kind of vehicles which moved through the opening. One of them, whose attention was attracted by the Hollenbeck car as it stood motionless 'two or three minutes, whatever time it took,' waiting for an opportunity to pass through the opening, accounted for his interest in this manner: 'I was standing there merely watching this procedure, knowing that this was kind of congested.'

About the time that the Hollenbeck car had reached the point which we mentioned, the plaintiff and a companion, Eugene W. Wilson, each riding a motorcycle, were going south on Southeast 20th avenue. They were proceeding in single file with Wilson in the lead. By reverting to the plat, it will be seen that Southeast 20th avenue makes a jog at Hawthorne street. Both are arterial streets. The plaintiff and Wilson approached Hawthorne street from the north and stopped at Hawthorne before entering it. After they had made the stop, the two riders turned to the left, entered Hawthorne and shortly turned to the right in order to continue their course south on that part of 20th. When the riders had cleared the two-story building on the southwest corner, which is shown upon our plat, they obtained a view down 20th avenue. Upon reaching that point they saw the defendant's truck and also the Hollenbeck car. They described their speed as approximately 20 miles an hour as they turned from Hawthorne into 20th and approached the Hollenbeck car.

Wilson, who was in the lead, gave the following account of the conditions as they existed immediately prior to and at the moment of the impact: 'Well, Mr. Hollenbeck's car was stopped, and as I was about to enter the opening to just go around Mr. Hollenbeck and go on, there was no traffic coming north on Southeast 20th; but I decided I hadn't ought to do that because I would be turning in front of my--Mr. Birks, who was immediately behind me. So I just pulled off to the left and stopped to let Mr. Birks go through first, rather than cause any carelessness. And as Mr. Birks started to go around Mr. Hollenbeck's car, the car suddenly started up, and, as Mr. Birks came alongside, and started to go through itself...