Dungey v. Fairview Farms

• Decision Date: 06 October 1955
• Citation: 205 Or. 615,290 P.2d 181
• Parties: William E. DUNGEY, Appellant, v. FAIRVIEW FARMS, Inc., a corporation, Respondent.
• Court: Oregon Supreme Court

Page 181

290 P.2d 181

205 Or. 615

William E. DUNGEY, Appellant, v. FAIRVIEW FARMS, Inc., a corporation, Respondent.

Supreme Court of Oregon, Department 2.

Oct. 6, 1955.

Burl Green, Portland, argued the cause for appellant. On the brief were Green, Richardson & Green, Portland.

David Fain, Portland, argued the cause for respondent. On the brief were Black, Kendall & Fain, and Paul Gerhardt, Portland.

Before WARNER, C. J., and TOOZE, LUSK and BRAND, JJ.

TOOZE, Justice.

This is an action for damages for personal injuries alleged to have been suffered as the result of a motor vehicle's negligent operation, brought by William E. Dungey, as plaintiff, against Fairview Farms, Inc., a corporation, as defendant. The trial resulted in a verdict and judgment in favor of defendant, and plaintiff appeals.

The accident involved in this case occurred about 10 a. m. on April 30, 1951, at the intersection of S.E. 76th avenue and S.E. Taylor street in Portland, Multnomah county, Oregon. Defendant's milk-delivery truck, driven by its employe, Eugene H. Lauzon, was proceeding easterly on S.E. Taylor street, and plaintiff, in his Dodge panel truck, was driving northerly on S.E. 76th avenue. A collision between the two vehicles occurred near the center line of S.E. 76th avenue, and plaintiff sustained personal injuries as the proximate result thereof. No further statement of the facts is necessary for the purposes of this opinion.

The sole question presented to us on this appeal relates to an instruction given by the trial court to the jury. The plaintiff assigns as error the giving of that instruction, contending that there was no evidence in the record to support it, and that its giving was prejudicial. The instruction in question follows:

'The evidence in this case shows that the district in which this accident happened was defined or was a residence district. The law provides that 25 miles per hour is the designated speed for a residential district, and that any speed in excess of the designated speed shall be prima facie evidence of violation of the basic rule, to which your attention has just been called.

'Prima facie evidence is primary evidence and is evidence that is sufficient to establish facts and which is, if not rebutted, or overcome by other evidence, remains sufficient for that purpose. Traveling in excess of 25 miles per hour, if you find that plaintiff was so traveling, does not necessarily mean that the plaintiff was negligent as a matter of fact, but you will determine that fact, taking into consideration all of the facts and circumstances and all of the conditions existing at the time and place of the happening of this accident.' (Italics ours.)

The foregoing instruction was given immediately following an instruction concerning the provisions of the basic rule as to speed, as provided in subd. (a) of § 115-320, O.C.L.A., as amended by ch. 458, Oregon Laws 1941, ORS 483.102.

Subdivision (b) of § 115-320, O.C.L.A. as amended, ORS 483.104, in part provides:

'(b) Any person who drives a vehicle upon a highway at a speed in excess of that designated by this act or by the state highway commission or the state speed control board, pursuant to the provisions of this act for the particular district or location, and who, while so driving, violates the basic rule set forth in subdivision (a) or any provision of sections 115-327 to 115-352, both inclusive, shall, upon conviction, be punished by a fine of not to exceed one hundred dollars ($100) or by imprisonment not to exceed 10 days, or by both such fine and imprisonment; provided, that any speed in excess of said designated speeds shall be prima facie evidence of a violation of subsection (a) of this section.

'Said designated speeds are as follows:

'1. Twenty miles per hour:

* * *

* * *

'd. Upon approaching within 50 feet and in traversing an intersection of highways where the driver's view in either direction along any intersecting highway within a distance of 200 feet is obstructed, except that when traveling upon a through street or at traffic controlled intersections the district speed shall apply.

'2. Twenty-five miles per hour:

'a. In any residence district as defined herein, or

* * *

* * *

'3. Fifty-five miles per hour in other locations.' (Italics ours.)

A 'resident district' is defined by subd. (y) of § 115-301, O.C.L.A., as amended by ch. 279, Oregon Laws 1947, ORS 483.020, as follows:

'(y) 'Residence district.' The territory contiguous to a highway not comprising a business district when the frontage on such highway for a distance of 300 feet or more is mainly occupied by dwellings or by dwellings and buildings in use for business.'

On direct examination, as a witness for defendant, Eugene H. Lauzon, driver of defendant's milk truck, testified as follows:

'Q. Would you tell us briefly the nature of the neighborhood where this occurred out there in--out there on 76th and Taylor? A. It was a residential district.

'Q. Residential district? A. Yes.

'Q. Houses all around? A. Yes.

'Q. No businesses? A. Not right close, no.' (Italics ours.)

On cross-examination, the witness Lauzon testified:

'Q. I see. Now, that is--you deliver only to residents--to houses where people live? A. Yes; that is only a retail route.

'Q. You don't deliver to stores or anything like that? A. No.

'Q. There is no stores out there in that area? A. There is stores out in that area, but they have other routes taking care of the stores. I only deliver retail.

'Q. It is mostly houses and vacant lots out there? A. Yes, it is.

'Q. Well, now, do you remember the address of this house that you delivered to, the last delivery you made, before the accident? A. 7505 Taylor, Southeast.

'Q. That would be the first lot after 75th, wouldn't it? A. Yes, it would be.

'Q. And, in other words, if there was a vacant lot, it would take up 7505 and the next house would have a higher number? That is the way they run? A. Yes.

'Q. So this would be the first house on the corner just off 75th? A. Yes. Just east of 76th. I mean, just east of 75th.'

That is the only evidence in the record respecting the character of the district where the accident occurred. Plaintiff offered no evidence whatever upon the subject.

It was solely upon the basis of this testimony that the trial court instructed the jury that the district where the accident happened was 'a residence district', and that the designated speed of 25 miles per hour was applicable.

Plaintiff contends that if one is to avail himself of the provisions of the statute respecting the designated speed for a residence district, it is incumbent upon him to present evidence that the frontage on the highway for a distance of 300 feet or more is mainly occupied by dwellings or by dwellings and buildings in use for business, and that that situation applies to both sides of the highway. In support of his contention, he cites a number of authorities: Utility Trailer Works v. Phillips, 249 Ala. 61, 29 So.2d 289; Krepcik v. Interstate Transit Lines, 152 Neb. 39, 40 N.W.2d 252, Id., 154 Neb. 671, 48 N.W.2d 839; Floeck v. Hoover, 52 N.M. 193, 195 P.2d 86; Mitchell v. Melts, 220 N.C. 793, 18 S.E.2d 406; Volland v. McGee, 238 Wis. 598, 300 N.W. 506; McGill v. Baumgart, 233 Wis. 86, 288 N.W. 799.

Although there are authorities which apparently announce a contrary doctrine, nevertheless, we are of the opinion that the rule announced in the cited authorities is the correct rule. Rauw v. Huling and Sparks, 199 Or. 48, 259 P.2d 99, is not, as defendant maintains, to the contrary. The question presented and decided in the Rauw case was whether it was error for the trial court to permit evidence as to conditions existing at and near the intersection where the accident occurred, in connection with the application of the basic rule as to the speed of plaintiff's automobile. There was no attempt to apply the designated speed for a business district in connection with plaintiff's operation of his...