Dimick v. Linnell

• Jurisdiction: Oregon
• Parties: LeRoy DIMICK, Respondent, v. Donald LINNELL, Appellant.
• Citation: Dimick v. Linnell, 240 Or. 509, 402 P.2d 734 (Or. 1965)
• Court: Oregon Supreme Court
• Decision Date: 03 June 1965

Page 734

402 P.2d 734

240 Or. 509

LeRoy DIMICK, Respondent, v. Donald LINNELL, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 5, 1965.

Decided June 3, 1965.

Paul E. Geddes, Roseburg, argued the cause for appellant. On the brief were Geddes, Felker, Walton & Richmond, Roseburg.

Philip A. Levin, Portland, argued the cause for respondent. With him on the brief were Pozzi, Levin & Wilson and Garry Kahn, Portland.

Before McALLISTER, C. J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

HOLMAN, Justice.

Plaintiff while a pedestrian upon a highway, was hit by defendant's automobile. From a judgment for plaintiff for damages defendant appealed. The only issue is whether defendant's motion for a directed verdict should have been granted on the basis that plaintiff was guilty of contributory negligence as a matter of law.

At about two o'clock on a foggy morning plaintiff decided to try to find a place where he could purchase some cigarettes. He left his home and walked to the Pacific Highway at a point about a mile from the city of Roseburg. At the highway he turned south and walked along its east side for a distance of from two to two and onehalf blocks to where he expected to find a cigarette vending machine. Not finding one there, he commenced to retrace his steps, proceeding northerly while remaining on the east side of the highway with his back to traffic in the lane of travel on his side of the road. While so proceeding he was struck from the rear by defendant's automobile which was also proceeding in a northerly direction.

The highway had an uninterrupted white line, referred to in the testimony as a fog line, painted along the easterly edge of its paved portion. Outside of the paved portion was a graveled shoulder estimated by various witnesses to be from three to seven feet in width beyond which was a ditch. Plaintiff remembers nothing subsequent to being at a point on the roadway at the approximate location he was struck. At that time he was from one to two feet outside the fog line on the graveled shoulder. The impact of his body on the front of defendant's kautomobile was half-way between the center of the hood and the right-hand edge of the vehicle. Defendant was swerving to the left at the time of the impact and from this the jury could conclude he had been occupying the full shoulder of the road.

Plaintiff testified he did not see the approach of defendant's vehicle and there is no testimony that he heard it. Immediately prior to the accident he had seen a car coming from the opposite direction which was 'up there quite a ways.' There was evidence from which defendant could have been found to have been traveling at a speed of 40 miles per hour.

Defendant claims that plaintiff was contributorily negligent as a matter of law because of his violation of ORS 483.220 which reads as follows:

'Pedestrians, when using any highway outside of incorporated cities, shall use the left-hand side of such highway so as to leave the right-hand side free for vehicles passing in the same direction and for safety in meeting vehicles proceeding in the opposite direction.'

Plaintiff was walking in violation of the statute. The conditions under which violation of a statute will establish responsibility for injuries as a matter of law are as follows: (1) there must be a causal connection between the conduct which violates the law and the injury; (2) the party seeking to charge the other with violation of the statute must be a member of the class of persons intended to be benefited by the legislation, and (3) the harm which occurred must be the kind the statute was intended to prevent. Smith v. Portland Traction Co., 226 Or. 221, 225, 359 P.2d 899 (1961).

There can be no doubt that the harm which occurred to plaintiff was the kind the statute was intended to prevent. This court, in Lemons v. Holland, 205 Or. 163, 191, 284 P.2d 1041, 1053, 286 P.2d 656 (1955), said of this statute as follows:

'* * * The primary purpose of ORS 483.220, supra, is to make certain that pedestrians see approaching traffic proceeding toward them so as to be able to step aside to or remain in a place of safety. * * *'

The statute is for the safety and protection of both the pedestrian and the vehicle operator, and the defendant is therefore one of the class of persons to be benefited by it. Also, one of the expressed purposes of the statute is 'to leave the right-hand side free for vehicles passing in the same direction.'

Plaintiff urges that there was evidence from which the jury could have found that plaintiff could not have avoided the accident had he been in a position to see defendant's oncoming automobile. He claims the jury could have decided the accident would have happened anyway and, if so, plaintiff's violation of the statute would not have been a cause of the accident and his injuries. Plaintiff suggests that defendant could have approached in a normal manner and when opposite the plaintiff suddenly swerved to the right and picked him off the shoulder before plaintiff could have avoided it. As evidence from which such an inference could be drawn, plaintiff points to defendant's testimony that he was driving down the paved portion of the highway, his testimony that the impact of plaintiff's body on the front of his vehicle was halfway between the center of the hood and the right side, and plaintiff's testimony that plaintiff was on the shoulder of the road. Plaintiff claims that it was physically impossible for defendant to drive down the paved portion of the highway and hit plaintiff with that portion of his automobile while plaintiff was on the shoulder unless defendant swerved to the right and hit him before he swerved in the opposite direction.

An inference that plaintiff could not have avoided the accident could only be drawn from testimony that indicated that the presence of defendant's vehicle on the was so sudden that had plaintiff been facing in the proper direction to see defendant's oncoming vehicle, he still could not have stepped into the ditch to avoid the accident. There is no such testimony. There was no question of causal connection between plaintiff's negligence and his injury to be submitted to the jury. Plaintiff's negligence was a cause of the accident. Plaintiff is among those who violate a statute and are responsible for consequent injuries.

Plaintiff also contends that he falls within a doctrine of 'justifiable violation' discussed in 2 Harper and James (1956) pages 1005-1011 and that this doctrine should be applied. Plaintiff contends the jury could have found that it was more dangerous to cross the highway twice on a dark and foggy night than it was to walk two blocks along its wrong side, and therefore his violation of the statute was justified. We believe that even if this court should decide, in a proper case, to adopt such a doctrine, there are not sufficient facts to justify its application here. The highway was only 33 1/2 feet wide from fog line to fog line and the traffic was light.

We conclude that plaintiff was guilty of contributory negligence as a matter of law and defendant should have been granted the directed verdict for which he moved. The judgment of the circuit court is reversed.

McALLISTER, Chief Justice (specially concurring).

I concur in the result of the majority opinion only because the plaintiff admittedly was walking on the wrong side of the highway with his back to defendant's approaching car, and there is no evidence from which it could be inferred that plaintiff's failure to comply with the statute did not contribute in some degree to his injury.

SLOAN, Justice (dissenting).

Plaintiff testified that he was walking on the shoulder of the highway, one or two feet from the edge of the pavement. The shoulder was about three feet wide. Defendant testified that plaintiff was walking in the middle of the north bound...