Dorey v. Myers

• Decision Date: 06 November 1957
• Citation: 317 P.2d 585,211 Or. 631
• Parties: Elaine DOREY, Respondent, v. Virgil S. MYERS, Appellant.
• Court: Oregon Supreme Court

Page 585

317 P.2d 585

211 Or. 631

Elaine DOREY, Respondent, v. Virgil S. MYERS, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted Oct. 9, 1957.

Decided Nov. 6, 1957.

Sam Kyle, Albany, argued the cause for appellant. With him on the brief were Weatherford & Thompson, Albany.

LaVerne M. Johnson, Corvallis, argued the cause for respondent. On the brief were Huston, Thomas & Johnson, Corvallis.

Before PERRY, C. J., and LUSK, WARNER and KESTER, JJ.

KESTER, Justice.

This is an action for damages for personal injuries arising out of an automobile accident. From a verdict and judgment in favor of plaintiff, defendant appeals. The first assignments of error relate to the trial court's denial of defendant's motions for nonsuit and directed verdict.

The accident occurred on May 2, 1953, at the intersection of Tyler street and Eleventh street in the city of Corvallis. Eleventh street extends in a northerly and southerly direction, Tyler runs east and west, and they make a right-angled intersection. Eleventh street, and the area within the intersection up to the east and west sidewalk lines, approximately 14 feet on either side of the intersection, have a concrete surface; and Tyler, up to the sidewalk lines on either side of the intersection, has an asphalt surface. On the northwest corner of the intersection is a store building which is set back about 16 1/2 feet north of the north curb of Tyler and a little over 21 feet west of the west curb of Eleventh. On the southwest corner is a house which is set back about 27 1/2 feet south of the south curb of Tyler and about 44 feet west of the west curb of Eleventh. The paved portion of each street is approximately 32 feet wide. On the southwest corner of the intersection is a 'slow' sign applicable to cars approaching the intersection from the west.

Plaintiff was driving south on Eleventh and defendant was driving east on Tyler, so that the view of each of them was somewhat obstructed by the store building. The collision occurred in the southwest or south-central part of the intersection. The front of defendant's car struck the right rear portion of plaintiff's car. Defendant's car stopped close to the point of impact, and plaintiff's car spun around, traveled some 51 feet farther south on Eleventh, and stopped facing back toward the north. The only visible skid marks were left by defendant, from the edge of the concrete to where his rear wheels stopped, a distance of 20 feet. The accident happened about 10:30 a. m., the weather was cloudy, and the pavement was dry.

The evidence was in conflict as to the speed of the cars. Accepting, as we must, the version most favorable to plaintiff, the jury could have found that plaintiff was entering the intersection at about 20 to 25 miles per hour, and defendant was approaching at 40 to 50 miles per hour. The latter testimony as to defendant's speed was given by an eyewitness who was in a bus going north on Eleventh, between 1/3 and 1/2 block south of the intersection in question. She saw defendant's car as soon as it passed the house on the southwest corner, and estimated its speed at that time as 40 to 50 miles per hour.

Plaintiff testified that just before she entered the intersection she slowed down and looked to her right, from which point she could see about a half block west on Tyler, and no car was then in sight. She proceeded straight ahead and didn't see defendant until just before the impact, when 'this flash came down the road at a terrific speed.' She was then so nearly through the intersection that she didn't try to stop, but instead she accelerated to try to clear him. Just as she attempted to speed up, the collision occurred.

Defendant testified that both cars entered the intersection at about the same time, and that he first saw plaintiff when they were both in the respective crosswalks. However, defendant's skid marks began at the west edge of the crosswalk on Tyler street, and allowing for some reaction time, the jury could have found that he was back of the crosswalk when he applied his brakes after seeing plaintiff's car. Since the skid marks began at the very point where the asphalt pavement adjoined the concrete of the intersection, the jury might have inferred that defendant's wheels actually skidded earlier, but that the marks were not visible on the asphalt. One of plaintiff's eyewitnesses, and defendant's passengers, also testified that both cars entered the intersection at about the same time.

Defendant claims to be entitled to a nonsuit and directed verdict because plaintiff was contributorily negligent as a matter of law: (1) in failing to yield the right of way, defendant being on the right as they entered the intersection; and (2) in failing to keep a lookout, as she did not see defendant's car when the physical facts show that it was plainly visible, according to defendant's theory.

The right of way statute is as follows:

'Drivers, when approaching highway intersections, shall look out for and give right of way to vehicles on the right, simultaneously approaching a given point, whether such vehicle first enters and reaches the intersection or not. This subsection does not apply at any intersection where and when traffic is controlled by traffic control signals or police officers. Any driver entering an intersection at an unlawful speed shall forfeit any right of way he would otherwise have under this subsection.' ORS 483.202(1).

As to the claim of right of way, it is sufficient to say that the jury could have found that defendant's speed was excessive, and that he forfeited the right of way. Defendant argues that speed is immaterial, since both cars entered the intersection at the same time. We cannot accept that view, under the express wording of the statute, but even if it were correct, the jury was not bound to find that both entered simultaneously. If the jury believed plaintiff's testimony that no car was visible for half a block, just before she entered the intersection, it could well find that plaintiff was in the intersection first. Because of the defendant's greater speed, and the greater distance plaintiff had to travel from the edge of the intersection to the point of impact, the mere fact of the collision does not demonstrate that both entered the intersection simultaneously, notwithstanding certain language in McNab v. O'Flynn, 127 Or. 490, 493, 272 P. 670. Entering the intersection at the same time is not necessarily the same as 'simultaneously approaching a given point;' and under the statute it is immaterial which enters the intersection first.

Even without the...