Burnett v. Weinstein

• Decision Date: 07 July 1936
• Citation: 154 Or. 308,59 P.2d 258
• Parties: BURNETT v. WEINSTEIN.
• Court: Oregon Supreme Court

59 P.2d 258

154 Or. 308

BURNETT v. WEINSTEIN.

Supreme Court of Oregon

July 7, 1936

In Banc.

Appeal from Circuit Court, Multnomah County; James W. Crawford Judge.

Action by Roy O. Burnett against Mandell Weinstein. Verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

Arthur I. Moulton, of Portland, for appellant.

W. B Shively and Paul R. Harris, both of Portland (Davis & Harris of Portland, on the brief), for respondent.

BELT Justice.

This personal injury action arose out of a collision between two automobiles on the Pacific Highway a short distance north of Vancouver, Wash. The accident occurred at about 3:30 o'clock on the afternoon of July 25, 1934. Plaintiff was driving a De Soto car north on the highway when a collision occurred between it and a Ford truck driven by defendant as the latter was crossing the highway to the west side thereof. When the collision occurred, near the center of the pavement 20 feet in width, the car of the plaintiff swerved to the left striking a concrete post which formed a part of the guard rail on the west side of the highway. When the car struck this post, the gasoline tank burst and an explosion followed, inflicting terrible injuries upon the plaintiff.

The charges of negligence as against defendant may thus be summarized: (1) Failure to give a proper signal as he was turning to the left to cross the highway in front of plaintiff's car; (2) failure to maintain a proper lookout; (3) failure to keep car under proper control; (4) failure to heed horn sounded by plaintiff; (5) driving at an excessive and dangerous rate of speed.

Defendant charged plaintiff with contributory negligence in the following particulars: (1) Driving at a dangerous rate of speed, viz., in excess of 40 miles an hour; (2) failure to maintain a proper lookout; (3) failure to apply brakes and slacken speed, or change his course to avoid striking defendants; (4) failure to give proper signal; (5) failure to keep car under proper control.

On these issues of negligence the cause was submitted to a jury and a verdict returned in favor of plaintiff for $11,782.50. From the judgment entered thereon, the defendant appeals.

Error is assigned on the denial of defendant's motion for a directed verdict based upon the contention that there was no evidence of negligence on the part of the defendant, and that the evidence conclusively established that plaintiff was guilty of contributory negligence. On appeal defendant practically abandons the first contention, but earnestly urges the second.

Ordinarily contributory negligence is a question of fact for the jury. It is only in exceptional cases that the court is warranted in determining such issue as a matter of law. The plaintiff is entitled to the benefit of reasonable inferences which may be drawn from the facts. With these fundamental principles in mind, the statement of the facts will be made in the light most favorable to plaintiff.

Plaintiff testified that he was driving north on the main highway leading from Vancouver to Seattle, Wash., at a rate of speed not in excess of 30 miles an hour. The highway at the place in question was straight for a considerable distance, and was slightly down grade. He says that, on account of another car's being in front of him, later turning off the highway prior to his reaching the point of collision with defendant's car, he was compelled to bring his car almost to a stop. Plaintiff says that, at such time, he observed defendant's car about 175 to 200 feet distant on the east edge of the highway, apparently slowing and turning to the right in an easterly direction. When plaintiff's car was within 50 to 75 feet of the Ford truck, he observed defendant turning as though to proceed north on the highway. Plaintiff says that he had sounded his horn and pulled out to pass defendant when the latter suddenly swung his truck over in front of him, giving, so far as he could see, no signal of his intention so to do. Plaintiff testified that he immediately applied his brakes, but was unable to avoid the impending collision as defendant was proceeding directly across his course. According to plaintiff, the impact of the collision threw him out of driving position and caused him to take his foot off the brake whereupon the car swerved to the left and crashed into a post about 50 feet distant from the point of collision. He says the car went from 10 to 15 feet after striking the post.

Farnum, an automobile salesman, driving a new Plymouth car, testified, in substance, that he followed plaintiff's car out of Vancouver to the place of collision, about one-fourth mile from the northern boundary of the city, and that, in his opinion, plaintiff was traveling between 30 and 35 miles an hour. He was about 175 to 200 feet from plaintiff at the time the collision occurred. Farnum says that a governor had been put on the new Plymouth to prevent its operation in excess of 35 miles an hour.

Nicolette, an employee of the Associated Oil Company, saw the accident and testified that, in his opinion, plaintiff was traveling agout 40 miles an hour. He says that plaintiff "swerved sharply to the left" to avoid striking defendant, but the rear of the De Soto collided with the truck.

There is much evidence in the record to the effect that plaintiff was driving at an extremely high rate of speed. The marks on the pavement would so indicate. Furthermore, the distance which the De Soto traveled after striking the concrete post, if the testimony of witnesses on behalf of the defendant is true, would also indicate a high rate of speed.

It was plainly a question of fact for the jury to determine. We are not prepared to say, as a matter of law, that the physical facts conclusively establish contributory negligence on the part of the plaintiff. No error was committed in denying the motion for a directed verdict.

Defe...