Bracht v. Palace Laundry Co.

• Decision Date: 09 March 1937
• Citation: Bracht v. Palace Laundry Co., 156 Or. 151, 65 P.2d 1039 (Or. 1937)
• Parties: BRACHT v. PALACE LAUNDRY CO.
• Court: Oregon Supreme Court

65 P.2d 1039

156 Or. 151

BRACHT v. PALACE LAUNDRY CO.

Supreme Court of Oregon

March 9, 1937

Department 2.

Appeal from Circuit Court, Multnomah County; John P. Winter, Judge.

Action by Laura E. Bracht against the Palace Laundry Company.Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Lamar Tooze, of Portland (Jaureguy & Tooze, of Portland, on the brief), for appellant.

Arthur I. Moulton, of Portland, for respondent.

BAILEY, Justice.

The plaintiff, Laura E. Bracht, instituted this action against the defendant, Palace Laundry Company, to recover damages for personal injuries sustained by her when struck by a delivery truck belonging to the defendant company.From a judgment entered upon verdict in favor of the defendant, the plaintiff appeals.

The facts are substantially the following: Mrs. Bracht, an elderly woman, was crossing the intersection of Eleventh avenue and Salmon street in the city of Portland, about 6:30 p. m. on January 21, 1935, proceeding in an easterly direction in the pedestrian lane on the south side of Salmon street.When within approximately ten to twelve feet of the eat curb of Eleventh avenue, she was struck by defendant's delivery truck, which was being driven north on that street.

Eleventh avenue runs in a northerly and southerly direction and is fifty-four feet wide between curbs.A street car track is laid in the middle of this street.Salmon street runs in an easterly and westerly direction and is forty feet wide between curb lines.Both thoroughfares have hard-surface pavement.The sidewalk on the south side of Salmon street is twelve feet wide and at the intersection extends from the buildings to the curb.At the time of the accident Mrs Bracht was on her way to a business college located on the southeast corner of Salmon street and Eleventh avenue, in which institution she was, and for many years had been, a teacher.

The plaintiff was dressed in a "medium-dark brown" fur coat.The umbrella and handbag she carried were of similar color.At the corners of the intersection were cluster lights, and there was further illumination from the windows of adjacent buildings.To any one on the sidewalks visibility was good for more than a block according to the testimony.One of defendant's witnesses testified that it was "bright as day on that corner."

The defendant's motor vehicle was a one-ton 1929 model A ford truck, and at the time of the accident was operated by Emery Lumsden, an experienced chauffeur who prior thereto had operated delivery trucks for laundry companies for some twelve years, and for a bakery concern about five years.About a block and a half south of the place of the accident he had stopped to pick up Mr. Godfrey, an old schoolmate whom he had not seen for some time, and was taking him to his home for dinner.

The evening was stormy.Heavy rain was falling, driven by a southwesterly wind.On both sides of Eleventh avenue to the south and immediately adjacent to the pedestrian lane motor vehicles were parked.According to the plaintiff's testimony, she stopped after reaching a point in the pedestrian lane beyond the parked cars, where she could see in both directions, and looked to ascertain whether there were any motor vehicles or street cars approaching from either direction.She saw none and hurried across the intersection with an umbrella over her head, her left hand holding the handle and her right hand holding the edge of the cover in order to keep it from being blown inside out, and tilting the umbrella to the south to protect her as much as possible from the rain.The edge of the umbrella came below the level of her eyes, but she testified that she could see beneath it to the south for a short distance, perhaps ten feet.In crossing the street she did not change the position of the umbrella and did not stop after leaving the line of parked cars at the west end of the pedestrian lane.She stated that she looked for approaching cars as much as it was possible while holding her umbrella as above described.

Plaintiff did not see the defendant's truck or know of its proximity until she was struck.She was thrown across the front bumper of the truck and the force of the impact broke her right leg.When the truck came to a stop she was still on the bumper, holding onto a lamp or other part of the truck.According to one of her statements she was carried more than three feet.She also described that distance as from the middle of the pedestrian lane to the middle of Salmon street.Two of her witnesses, both teachers at the business college testified that they did not see the accident but were at the place of it before plaintiff was removed from the bumper, and that the front of the truck was two to three feet north of the curb line of Salmon street.

Lumsden the truck driver, according to his testimony, had stopped at Main street, one block south of Salmon street, where there were caution signals, and was proceeding northerly at a rate not exceeding ten miles an hour.Both side windows of the truck cab were closed in order to keep out the driving rain.The truck was equipped with a windshield wiper which was in good condition and in operation at the time of the accident.Before crossing the pedestrian lane of Salmon street, Lumsden slowed down to five or six miles an hour.He did not, however, see the plaintiff in the lane.As he entered the intersection her umbrella struck the windshield and he immediately stopped the truck, without, he testified, going more than twenty to thirty inches farther.Mr. Godfrey got out and found the plaintiff resting on the bumper.The driver then backed the truck, as he states, four or five inches, because he thought one of the front wheels might be on plaintiff's foot.

According to Mr. Godfrey's testimony, the lights along the street "were blinding against this wet windshield, and they were kind of blurry, and it was very difficult to see anything."From his side of the truck he could not distinguish approaching automobiles.The driver, however, testified that the windshield wiper kept clear the outside of his half of the windshield, except the lower part, but because of the driving rain and the reflections on the wet street surface it was difficult to see objects, and especially difficult to see the plaintiff, due to the dark clothing she wore.

Two disinterested witnesses, O'Connor and Mrs. Merritt, called by the defendant, corroborated the truck driver's testimony as to the rate of speed at which he was driving and the distance traveled by him after the truck came into contact with the plaintiff.

No attempt is made here to refer in detail to all the evidence in the case.Mention should be made, however, of one feature stressed by the defendant, which is that at least two witnesses testified that a motor vehicle, traveling south on Eleventh avenue, had passed immediately in front of plaintiff after she started to cross the street, yet she stated that she had not observed it.The only testimony on this subject, so far as we have discovered, is that of the driver of the truck, and it is very vague and indefinite.

The appellant's brief contains six assignments of error, the first five of which have to do with the failure of the trial court to give certain requested instructions.The sixth is based upon the admission of testimony over plaintiff's objection.

The court refused to give the following instruction requested by plaintiff: "In determining whether or not the plaintiff was guilty of contributory negligence, you are instructed that plaintiff, in the absence of notice to the contrary, had a right to assume that the driver of defendant's truck, and others, in the operation of motor vehicles, would obey the requirements of the law, and would operate their motor vehicles in a reasonable and prudent manner, and would yield the right of way to any pedestrian within the regular cross walk."

The respondent does not question the correctness of this instruction, but asserts that the principle enunciated by it is so well known and so commonly understood by the ordinary layman that to give such an instruction would be only to state what was a matter of common knowledge.It is further contended by the respondent that the trial judge fully and fairly instructed the jury on the subject of contributory negligence when he gave the following charge: "Now, while the plaintiff has the right of way, this does not absolve her from using ordinary care-such care as an ordinarily prudent person would use under the circumstances-and it is for you to determine whether or not plaintiff did use that care which an ordinarily prudent person would use under the circumstances considering all the conditions, the weather and everything else, and if you find that she failed to use that degree of care that an ordinarily prudent person would use under the circumstances, and you further find that this failure on her part to use that care in any way contributed as a proximate cause to the injury, why then the plaintiff could not recover, notwithstanding that the defendant may have been negligent,-or the driver of the truck."

One of the pivotal questions in the case was whether or not the plaintiff was guilty of contributory negligence.In determining whether the plaintiff was using the care of an ordinarily prudent person in crossing the intersection the jury should have been advised of the principle of law embodied in the plaintiff's foregoing requested instruction.The charge given emphasized the care which the plaintiff was required to exercise to a much greater extent than it stressed her right to the use of the pedestrian lane, and entirely failed to mention the rule of law covered by the required instruction.Under the...