Casto v. Hansen

• Decision Date: 15 November 1927
• Parties: CASTO v. HANSEN ET AL.
• Court: Oregon Supreme Court

261 P. 428

123 Or. 20

CASTO v. HANSEN ET AL.

Supreme Court of Oregon, En Banc.

November 15, 1927

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Action by Chas. H. Casto against C. P. Hansen and Frank Bentley. From a judgment for plaintiff, defendants appeal. Affirmed.

James L. Conley, of Portland, for appellants.

Virgil H. Massey, of Woodburn, and Guy O. Smith, of Salem, for respondent.

BELT J.

This is an action to recover damages resulting from a collision between an automobile and a motorcycle, near the city of Woodburn, on the Pacific Highway, at a point where it is intersected by Hardcastle avenue. Plaintiff had a verdict and defendants appeal, assigning as error the failure of the court to allow motion for nonsuit. It is their contention that, as a matter of law, plaintiff was guilty of contributory negligence in entering this primary highway in excess of 5 miles per hour, and by reason of his alleged failure, when approaching the intersection, to give right of way to automobile driven by the defendant Bentley.

On July 15, 1926, at about 7:30 in the evening, plaintiff was riding a motorcycle in an easterly direction on Hardcastle avenue. He testifies that, as he approached the intersection, he "slowed to about 5 miles an hour," and, when within 35 or 40 feet of it, looked to the right and saw no automobile approaching from the south. Plaintiff says that he drove into the intersection, keeping to the right and around the center thereof, and turned to the left, proceeding north towards the city of Portland. He says that, after he had made the turn and reached a point about 8 or 9 feet beyond the intersection, his motorcycle was struck in the rear by the automobile traveling in the same direction. The pavement was dry, and there was evidence that the automobile skidded for a distance of 45 feet prior to striking him. It also appears that, after being struck, plaintiff was thrown into a ditch 96 feet distant. The highway at place of collision is straight for a considerable distance, and there were no obstructions to plaintiff's view as he drove into the intersection. Defendant Bentley testified that, when he first saw plaintiff, the latter was 25 or 30 feet west of the intersection, and he was 50 feet south thereof. Can we say as a matter of law, that plaintiff was guilty of contributory negligence?

At the time this accident occurred, under section 2 of Chap. 104 Laws of Oregon for 1925, plaintiff was obliged to enter this primary highway at a rate of speed not in excess of 5 miles per hour. We are unable to say from the testimony of plaintiff that he violated the law in this respect. "About 5 miles an hour" might well mean either less or more than the rate of speed stated. The word "about" means "nearly" or "approximately." 1 Words and Phrases, Second Series, page 13. This indefinite estimate of speed is not equivalent to an admission that plaintiff was traveling in excess of 5 miles per hour. The law has now been amended to require a vehicle entering a primary highway to come to a complete stop. Chapter 377, Laws of Oregon for 1927.

Subdivision 7 of section 2, chapter 371, Laws of Oregon for 1921, provides:

"Drivers, when approaching highway intersections, shall look out for and give right of way to vehicles on their right, simultaneously approaching a given point. * * *"

Does the testimony of plaintiff show that he complied with this statutory obligation to "look out for and give right of way" to automobiles approaching the intersection from his right? We cannot say at what place he should have looked, nor that he should thereafter have fixed his gaze constantly in the same direction. Kirby v. Southern Pacific Co., 108 Or. 290, 216 P. 735. His conduct in this respect must be measured by the degree of care which an ordinarily prudent person would have exercised under the same circumstances. The law cannot establish any arbitrary standard in such matters. The fact that he looked and did not see the automobile approaching does not, as a matter of law, convict him of negligence, although it might be a sufficient reason for a jury to do so. When he approached the intersection, he was called upon, in the light of all the facts and circumstances as they would have appeared to a person of ordinary caution and prudence, to determine whether he could cross it with a reasonable degree of safety. If there was no reasonable apprehension of danger, in view of the rate of speed and distance of the automobile approaching from the right, the plaintiff had the right to proceed.

Under the statute, he would not be warranted in taking a close chance. The doubt should be resolved in favor of the one having the right of precedence. "He died contesting the right of way" should be no man's epitaph. This rule of traffic has no application, where the intersection is approached at such time that a person in the exercise of due care would be led to the reasonable belief that he could pass with safety in front of a vehicle approaching from his right.

Assuming that plaintiff had seen the automobile when he looked, it does not necessarily follow that he had no right to cross the intersection. Rupp v. Keebler, 175 Ill.App. 619; Minnis v. Lemp (Mo. App.) 226 S.W. 999; Brown v. Chambers, 65 Pa. Super. Ct. 373. Ordinarily, whether due care was exercised in this regard would be a question of fact for the jury.

It is not contemplated by the...