Blaylock v. Westlund

• Decision Date: 04 March 1953
• Citation: 197 Or. 536,254 P.2d 203
• Parties: BLAYLOCK v. WESTLUND.
• Court: Oregon Supreme Court

Page 203

254 P.2d 203

197 Or. 536

BLAYLOCK v. WESTLUND.

Supreme Court of Oregon.

Argued Feb. 3, 1953.

Decided March 4, 1953.

James M. McGinty, of Myrtle Creek, argued the cause and filed a brief for appellant.

Duley C. Walton of Roseburg, argued the cause for respondent. On the brief were Davis, Walton & Richmond, of Roseburg.

Before LATOURETTE, C. J., and WARNER, ROSSMAN, LUSK and PERRY, JJ.

ROSSMAN, Justice.

This is an appeal by the plaintiff from an order of the circuit court, which set aside a verdict in favor of the plaintiff and ordered a new trial of the action. The verdict, in the amount of $543.50, was based upon damages which were inflicted upon the plaintiff's automobile, so the plaintiff alleged, when the defendant's car collided with the plaintiff's. The challenged order reads as follows:

'For the reason that the jury was not instructed that the defendant has the right of way over the plaintiff who was making a left turn across defendant's path.

'It is hereby ordered that the verdict rendered herein in favor of the plaintiff be and the same is hereby set aside and that a new trial of this cause be and is hereby granted by the court on its motion.'

The plaintiff insituted this action to recover damages in the amount of $543.50 which, according to him, were inflicted upon his automobile when it was struck by one driven by the defendant. The collision occurred December 26, 1950, at about 4:15 p. m., on highway No. 99 at a point about two miles north of Canyonville. Highway No. 99 runs north and south. At the time of the impact the defendant's car was proceeding north. The plaintiff's car, which had been going south a moment prior to the accident, had turned to the left and when hit was crossing the east half of the roadway preliminary to entering a private driveway. Before the plaintiff undertook to turn left, he had stopped his car upon the roadway's right shoulder for a brief pause so that some vehicles to his rear could pass him. There was attached to his car, a coupe, a small trailer which protruded ten feet to the rear.

When the plaintiff's car had crossed the yellow line which marked the center of the pavement, but before it had entered upon the east shoulder, it was struck by the defendant's. The front of the latter struck the right-hand door of the plaintiff's car. The plaintiff's speed while he was undertaking to cross the pavement was no more than two or three miles per hour. The impact occurred on the east half of the pavement. From the place where the plaintiff paused for a moment, before he undertook to turn to the left across the roadway, he could look to the south down the highway for 500 feet. Thus, a car approaching from the south could be seen from the place of the mishap for 500 feet. The plaintiff swore that before he started to turn he gave a signal and looked to the south. According to him, the defendant's car was not then in sight. He claimed that when it appeared in view it was traveling at a high rate of speed. The defendant testified that he did not see the plaintiff's car until he was about 80 feet from it and that he observed no signal. He estimated his rate of speed as 45 to 50 miles an hour. The defendant's car left skid marks upon the pavement for a distance of 91 feet.

The trial judge instructed the jury, in part, as follows:

'Now, the law provides that the driver of any vehicle upon a highway, before starting, stopping or turning from a direct line, shall first see that such movement can be made in safety and whenever the operation of any other vehicle may be affected by such movement, shall give a signal, plainly visible to the driver of such vehicle of the intention to make such movement and it is the law that the driver of any vehicle upon a highway, before turning from a direct line, shall first see that such movement can be made in safety. The defendant would not be guilty of negligence simply by reason of the fact that a collision occurred. By using the words 'first seeing that such movement can be made in safety', the law does not mean that the person must actually accomplish the turn in safety or be guilty of negligence. They are not to be held or he is not to be held as an insurer or guarantor of the success in his attempt to negotiate the turn. The test to be applied is this: Under the circumstances would it have appeared to a reasonably prudent person in the position of the plaintiff that he could make such turn in safety.'

The above will suffice as a statement of the facts.

In ordering a new trial, the trial judge declared:

'Now, in the case of Black v. Stith, 164 Or. 117, 100 P.2d 485, the defendant had the right-of-way. Now, there is no statutory right-of-way but under this case of Black v. Stith, 164 Or. 117, 100 P.2d 485, the man, undoubtedly, had what is called the common law right-of-way. It says 'While the statute does not confer upon the plaintiff driver any right of way between intersections, we think it is well established under the common law that he has such right.' So that the defendant travelling on his own side of the road had the right-of-way and the other man was not entitled, the plaintiff was not entitled to turn to the left and across the path of the defendant without seeing that that could be done in safety. That is the statutory duty which the law places upon him. The language of the statute is that, in substance, before starting, stopping or turning from a direct line, the driver shall see that such movement can be made in safety. So that he had an affirmative duty to see that that could be made in safety and if it couldn't be made in safety, he was not entitled to turn left across the highway in the path of an oncoming car. The law would require him to yield to the defendant and let the defendant pass first.

'In view of the situation that no instruction was given on the question of right-of-way between intersections, the verdict will be set aside and a new trial granted. Let that be the order.'

The answer's specifications of negligence, after mentioning failure to maintain a lookout and failure to burn headlights, set forth the following:

'That plaintiff operated and drove his automobile over and across the center line of said highway onto his left-hand side thereof and onto and into the path of the oncoming traffic proceeding in a northerly direction on said highway while said left-hand lane of traffic was occupied and being traversed by other automobiles, particularly the automobile of defendant.

'Plaintiff operated and drove his automobile over and across the center line of said highway onto his left-hand side thereof and onto and into the path of the oncoming traffic proceeding in a northerly direction on said highway without any signal whatsoever and without sufficient clearance for approaching vehicles from the south.'

Our right-of-way statute provides:

'(a) Vehicles approaching an intersection. Drivers, when approaching highway intersections, shall look out for and give right of way to vehicles on the right, simultaneously approaching a given point, * * *.

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'(c) Vehicle turning left at an intersection. The driver of a vehicle within an intersection intending to turn to the left shall...