Clark v. Fazio

• Decision Date: 25 April 1951
• Parties: CLARK v. FAZIO et al.
• Court: Oregon Supreme Court

Page 553

230 P.2d 553

191 Or. 522

CLARK v. FAZIO et al.

Supreme Court of Oregon.

Argued April 3, 1951.

Decided April 25, 1951.

Carl D. Etling, Portland, argued the cause for appellant. With him on the briefs was Harry H. Daniel, Portland.

E. K. Oppenheimer and Wayne A. Williamson, Portland, argued the cause for respondents. On the brief were Wilbur, Beckett, Oppenheimer, Mautz & Souther, and Wayne A. Williamson, Portland.

Before BRAND, C. J., and HAY, ROSSMAN, WARNER and TOOZE, JJ.,

TOOZE, Justice.

This is an action by Joseph E. Clark, as plaintiff, against Tony Fazio, Antonio Fazio, and Andrew Fazio, individually and as copartners, doing business as the Columbia Gardening Company, and Leo Louis Savio, as defendants, to recover damages for personal injuries sustained as the result of the alleged negligent operation of a motor truck. There was a verdict and judgment for plaintiff in the sum of $15,000. On defendants' motion, the trial court set aside the judgment and granted a new trial. Plaintiff appeals.

The accident occurred about 1:00 p. m. on June 1, 1946, on Northeast 47th avenue, just outside the city limits of the city of Portland. Northeast 47th avenue runs in a general northerly and southerly direction and bounds the Portland Municipal airport on the west. It is a two-lane, macadam highway, with gravel shoulders, and is marked with a yellow stripe along its center line.

Immediately prior to the accident the defendant Savio, as an employee of the other defedants, was operating defendants' motor truck in a northerly direction along Northeast 47th avenue and was approaching the entrance to a private roadway leading from said avenue to the lands of defendants on the west side of said highway. At the same time, plaintiff was operating a Ford coupe automobile in a northerly direction along said highway and approaching said motor truck from the rear. As plaintiff was in the act of overtaking and passing said motor truck, having duly signaled his intention so to do, the truck made a left-hand turn to enter said private roadway; and thereupon, a collision occurred between the two vehicles, as a result of which collision, plaintiff suffered certain personal injuries, for which this action was instituted to recover damages.

For the purposes of this opinion the foregoing is a sufficient statement of the facts of the case.

In instructing the jury the trial court read certain provisions of the statute which, in the court's opinion, were applicable to the issues in the case and then properly instructed the jury that the violation of a statutory rule of the road constituted negligence per se.

In this connection the court read to the jury § 115-334(b), O.C.L.A., as amended by ch. 428, Oregon Laws, 1941, which reads as follows: '(b) Approach for a left turn shall be made in the lane for traffic to the right of and nearest to the center line of the highway and the left turn shall be made by passing to the right of such center line where it enters the intersection, and upon leaving the intersection by passing to the right of the center line of the highway then entered; * * *.'

Upon conclusion of the instructions to the jury and before the jury retired for deliberations, defendants took the following exception to the giving of the foregoing instruction: 'Next, the defendants save an exception to the Court's instruction as to the method and manner that one is obliged to make a turn at an intersection by passing to the right of the center line of the highway on which the vehicle is proceeding and entering the roadway or highway to the right of the center line of the entering highway, for the reason that the facts in this case clearly show that the statute has no application to the factual situation in the case at bar.'

The court, with respect to this exception, stated: 'Now I am inclined to think you are right about this matter of entering an intersection and I will correct that and tell them it has no application. I think where they enter it and where they leave it, it has no application.'

Thereupon, the court further instructed the jury as follows: 'Now, Ladies and Gentlemen, the Court in its instructions called your attention to certain statutes, among others the following and I shall read the statute: 'Approach for a left turn shall be made in the lane for traffic to the right of and nearest to the center line of the highway,' and I went on to read further from the statute, 'and the left turn shall be made by passing to the right of such center line where it intersects the center line of the highway then entered.' Now, Ladies and Gentlemen, the last part of that statute, to-wit; that part which reads as follows: 'And the left turn shall be made by passing to the right of such center line where it enters the intersection, and upon leaving the intersection by passing to the right of the center line of the highway then entered,' has no application to this case and you will therefore disregard that instruction. The only portion of such instruction which would or could have any application would be the first part which the court read.' (Italics ours.)

One of the jurors then asked the court to clarify its meaning; whereupon, the court in substance repeated the foregoing and stated with respect to the first part of the statute, after requoting same, as follows: 'Now, that portion remains.'

As a part of his case, plaintiff had testified that immediately before the accident the truck had slowed down as though to stop and had pulled to the right side of and partly off the paved portion of the highway, that is, away from the center line of the road. Also, on cross-examination of Savio, the driver of the truck, plaintiff sought to establish that the truck had traveled diagonally across Northeast 47th avenue toward the entrance of the private roadway, instead of proceeding in the manner required by the statute for making a left...