Fisher v. Reilly

• Decision Date: 07 March 1956
• Citation: 294 P.2d 615,207 Or. 7
• Parties: William FISHER, Respondent, v. Etsel E. REILLY, Appellant.
• Court: Oregon Supreme Court

Page 615

294 P.2d 615

207 Or. 7

William FISHER, Respondent, v. Etsel E. REILLY, Appellant.

Supreme Court of Oregon.

Argued Jan. 19, 1956.

Decided March 7, 1956.

Herbert M. Schwab, Portland, argued the cause for appellant. On the brief were Dusenbery, Teiser, Martin & Schwab, Portland, and W. C. Schwenn, Hillsboro.

Francis E. Sturgis, Hillsboro, argued the cause and filed a brief for respondent.

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

BRAND, Justice.

This is an appeal from a judgment in favor of the plaintiff, arising out of a collision between plaintiff's pickup truck and defendant's sedan. The collision occurred on the afternoon of July 31, 1951, a short distance north of the Tualatin River bridge on Highway 99W between Newberg and Portland. The plaintiff Fisher was driving his pickup truck in a southerly direction in the west lane of the highway. The defendant Reilly was driving his sedan in a northerly direction in the east lane of the highway. The plaintiff made a left turn across the highway in front of the oncoming car of the defendant, intending to enter the private driveway on plaintiff's property. The right front of defendant's car struck the right rear side of plaintiff's pickup. The police officer who arrived at the scene a few minutes after the collision located the point of impact near the center of the north-bound lane where he found dirt and debris. He testified that at the point of impact the skid marks made by defendant's car were in the north-bound lane. Plaintiff testified, however, that the collision occurred east of the paved portion of the highway. The two cars came to rest about a foot apart. The plaintiff's car was then east of the pavement and defendant's car was still on the pavement. There was no street intersection at the point where plaintiff turned left.

The plaintiff testified that he shifted from high into second gear about 75 feet north of the private driveway and before he saw the defendant's car. He first saw the defendant's sedan 350 to 400 feet away when he was still in the south-bound lane, but was starting to turn left to enter his driveway. He testified that he estimated the defendant's speed at 70 to 75 miles per hour, but he added that he thought the defendant would slow down and let him complete his turn into the driveway. Plaintiff gave a left-turn signal. There is some corroborating evidence concerning the speed of the defendant. A witness who was driving north at about 50 miles an hour testified that defendant passed him on the bridge which was about three-tenths of a mile south of the point of impact, and the witness estimated that defendant was driving 70 miles per hour. The defendant testified to a speed of 'approximately' 50 miles an hour, but he also testified as follows:

'A. As I come to the crest of this hill, all of a sudden I saw a pickup truck making a left-hand turn some 100 or 150 feet in front of me and I slammed on my brakes to make a stop, but I didn't quite make it.

'Q. How long did you see this pickup before you realized he was making a left-hand turn? A. Couldn't be over a second before I seen him swinging across the yellow line.

'Q. How far was your car from the yellow pickup, when he started swinging across the center line? A. Some 100 to 150 feet.

'Q. The point is, you immediately applied your brakes? A. Yes.

'Q. After you applied your brakes, just tell us what happened to your car and to the Fisher truck? A. I immediately applied my brakes and locked all four wheels into a slide and I made contact with Fisher's car about the center of the lane on the north bound lane of traffic.'

If we accept the plaintiff's testimony the defendant's car was 350 to 400 feet away when plaintiff, in second gear, started his left turn, but he was aware of a speed of 70 to 75 miles an hour at which defendant was approaching. If we accept the defendant's testimony the north-bound car was moving at a somewhat lesser speed but was within 100 to 150 feet of the plaintiff's car when plaintiff turned to the left in front of the oncoming traffic. In either event the left-hand turn was fraught with danger.

Error is assigned by reason of the refusal of the court to grant a directed verdict for defendant.

The defendant cites Black v. Stith, 164 Or. 117, 100 P.2d 485, 486, as supporting his claim that the driver who made the left-hand turn was guilty of contributory negligence as a matter of law. In that case, as in the one at bar, the south-bound driver turned left in front of oncoming traffic at a point where there was no intersection. The south-bound driver said he was traveling about 25 miles an hour. After he started to make the left turn he first saw the north-bound car traveling between 60 and 70 miles an hour about 300 feet distant. The driver of the north-bound car testified that he was driving between 40 and 45 miles an hour. The north-bound driver saw the south-bound car 100 to 150 feet away. 'The 'next thing I knew it was right in front of me.'' Thus far the facts are strikingly like those in the pending case. The legal situation, however, is quite different. In Black v. Stith the plaintiff was the north-bound driver. In the pending case the plaintiff was the south-bound driver. The verdict in Black v. Stith was in favor of the north-bound driver and against the one who turned left. We affirmed. The case establishes the rule that the north-bound driver had the common-law right-of-way as against the one who turned left in front of him. Concerning the south-bound driver we said that he

'had the right to turn to the left and cross the highway but, in doing so in front of oncoming traffic, he was obliged to exercise a high degree of care. After all, the test is: What would an ordinarily prudent person have done under the same circumstances? We think such person would yield the right of way to a car approaching from the opposite direction, unless he had reasonable ground to believe that he could cross in safety. Any other rule would invite disaster.' Citing cases.

The Stith case is improtant here. It demonstrates that the defendant Reilly had the right-of-way and the plaintiff was chargeable with knowledge thereof. He therefore had no right to assume that the northbound defendant would slow down and yield the right-of-way. Yet his own testimony shows that the plaintiff Fisher was relying on the idea that defendant would slow down and yield the right-of-way. He testified:

'Q. And when you saw him coming, what you thought was very fast, you saw him about 350 or 400 feet away? A. Yes.

'Q. You started to make your turn, and you thought he would slow down and let you complete your turn? A. Certainly, I thought he would. If he would have stayed on the highway and not come off the highway onto the gravel he wouldn't have hit me. Or if he would have hit me, there wasn't a car coming from the north at all, and he wouldn't have hit me if he had gone into the other lane.'

In the Stith case the trial court gave some erroneous instructions and this court invoked Article VII, § 3 of the Oregon Constitution and being of 'opinion, after consideration of all the matters thus submitted, that the judgment * * * was such as should have been rendered' we affirmed the judgment for the north-bound driver. The case establishes the fact that, in agreement with the jury we found the driver who made the left turn was negligent and to that extent the decision is persuasive in the pending case in which the facts are strikingly similar. We said:

'* * * It may be that plaintiff [the north-bound driver] was driving much faster than 40 miles an hour--most drivers do on that section of highway--but, even so, in the absence of notice to the contrary, he could not reasonably anticipate that any car would cut across the highway at such place. * * *'

In affirming the case we arrived at the result after consideration of all of the evidence. We did not hold nor under the constitutional provision did we need to hold that the driver making the left-hand turn was negligent as a matter of law.

In the pending case the jury found for the plaintiff who made the left-hand turn. We can overthrow that verdict only if the plaintiff was negligent as a matter of law.

The next Oregon case cited by defendant is Blaylock v. Westlund, 197 Or. 536, 254 P.2d 203. In that case as in the one at bar the plaintiff was south bound and made a left turn. The facts were similar to those in the pending case. There were the same discrepancies in the testimony as to speed and distance when the left turn was made. The turn was not at an intersection. We held that the trial court properly granted a new trial because of its failure to give an instruction to the effect that the north-bound defendant had the right-of-way. The opinion followed and emphasized the rule of Black v. Stith but it did not hold that the plaintiff who made the left turn was guilty of negligence as a matter of law.

In Casto v. Hansen, 123 Or. 20, 261 P. 428, plaintiff was riding easterly on a motorcycle. As he approached an intersection he reduced speed to about five miles an hour and when within 30 or 40 feet of it he looked to the right and saw no automobile. He drove into the intersection, keeping to the right and around the center thereof and proceeded north. He was struck by defendant's northbound car just after clearing the intersection. Defendant appealed from a judgment for plaintiff, contending that plaintiff was guilty of negligence as a matter of law. This court said that it could not say as a matter of law that the plaintiff was guilty of negligence. It is true that the defendant had the right-of-way, but this was an intersection case. The rule was well stated in a quotation from Huddy on Automobiles, 7th ed., § 311, as follows:

"If a traveler, not having such right of precedence, comes to the crossing and finds no one approaching it upon the other street within such distance as reasonably to indicate danger...