French v. Christner

• Decision Date: 07 December 1943
• Citation: 173 Or. 158,143 P.2d 674
• Parties: FRENCH v. CHRISTNER et al.
• Court: Oregon Supreme Court

143 P.2d 674

173 Or. 158

FRENCH v. CHRISTNER et al.

Supreme Court of Oregon

December 7, 1943

Rehearing Denied Jan. 18, 1944.

Appeal from Circuit Court, Clatsop County; Howard K. Zimmerman Judge.

Action by Guy French against A. F. Christner and others for injuries resulting from a rear end collision involving three loaded logging trucks and trailers. From a judgment for plaintiff the defendant A. S. Page, Inc., a dissolved corporation appeals.

Affirmed

A. C. Fulton, of Astoria, and Frank S. Senn, of Portland (G. C. & A. C. Fulton, of Astoria, and Senn and Recken, of Portland, on the brief), for appellant.

George P. Winslow, of Tillamook (George P. Winslow, of Tillamook and Frank G. Hesse, of Astoria, on the brief), for respondent.

Before BAILEY, C.J., and BELT, ROSSMAN, KELLY, LUSK, BRAND, and HAY, JJ.

BELT, Justice.

This is an action to recover damages for personal injuries resulting from a rear-end collision involving three loaded logging trucks and trailers. The jury, by its verdict, exonerated the defendants A. F. Christner and John Dawson from liability but found against the defendant A. S. Page, a dissolved corporation, in the sum of $14,585.69. Hence this appeal assigning as error the denial of motions for nonsuit and a directed verdict; the giving of certain instructions, and the refusal to give certain instructions requested by the appellant; and the order of the court sustaining a demurrer to appellant's supplemental answer.

In considering whether error was committed in submitting this cause to the jury, the evidence must be viewed in the light most favorable to the plaintiff and he must be given the benefit of every reasonable inference in his favor which can be drawn from the evidence. No attention will be given to the conflict in the evidence. The statement of the facts will therefore, be made in keeping with the above elementary principles of law.

The collision in which plaintiff was injured occurred in the afternoon of a bright sunny day-June 4, 1941. The pavement was dry. The highway was comparatively level and there was a slight curve to the right going in a northerly direction. The three trucks and trailers involved-each weighing, when loaded with logs, approximately 30 tons-were traveling, as a part of a logging caravan, in a northerly direction on the Oregon coast highway between Seaside and Astoria, Oregon. As a general rule, these trucks traveled about 300 feet apart and at a speed of from 30 to 35 miles an hour. In this caravan there were trucks both in front and behind the three trucks in question. Defendant A. F. Christner was the owner of a truck and trailer driven by the defendant John Dawson which, for the purpose of clarity, will hereafter be designated as Truck No. 1. A. S. Page, Inc., was the owner of the truck and trailer driven by a man named Kelly and will be designated as Truck No. 2, since it followed the truck driven by Dawson. Truck and trailer No. 3, which followed the truck driven by Kelly, was operated by the plaintiff, Guy French. Each truck and trailer was loaded with logs about 40 feet in length and the logs extended 10 or 12 feet beyond the end of the trailer-the over-all length of the truck and trailer, when loaded, being about 50 feet.

It appears that a small brush fire was burning about 200 feet west of the highway at the place in question and that a wind from the west caused a dense cloud of smoke to completely cover the highway for a distance of 150 feet. Truck No. 1 entered this blanket of dense smoke and, just as it was emerging therefrom, was struck in the rear with terrific force by Truck No. 2. As a result of this collision, the highway was blocked. At the time of the collision, Truck No. 1 was being driven at a speed of from 10 to 12 miles an hour. There is evidence that Truck No. 2, at the time of entering the smoke screen, was about 150 feet distant from the first truck and was traveling at a speed of 30 or 35 miles an hour without lights burning. Inspection after the wreck disclosed that Truck No. 2 was in high over-drive gear; that the brakes on plaintiff's truck were set; and that no lights on any of the trucks were burning. Truck No. 2 was completely demolished and its driver instantly killed.

Plaintiff, who was traveling about 300 feet behind Truck No. 2, said he first observed the smoke when he was about 1500 feet away but did not see that it was across the highway until he was 400 to 450 feet from the scene of the accident. Plaintiff testified that, when he reached a point 300 to 350 feet from the cloud of smoke, he saw Truck No. 2 disappear in the smoke without the speed thereof being reduced, but that he did not see Truck No. 1 enter the smoke. Plaintiff testified that, immediately before entering the cloud of smoke, he put on his brakes and lights and reduced his speed to 10 or 15 miles an hour. He said that, after having gone nearly 50 feet, his truck collided with the trucks blocking the highway and the logs of appellant's truck extending out behind the trailer demolished the front end and cab of his truck, thereby causing him to be seriously and permanently injured. Plaintiff testified that the smoke was so dense he could not see beyond his radiator but that he could look down and see the yellow line marking the center of the highway and thus he was able to stay on the right side thereof. Plaintiff further stated that he did not realize the density of the smoke until he had entered the same and that he saw no red light burning on the rear end of the trailer of Truck No. 2. The evidence discloses that this rear stop light operates when the brakes are applied or when the headlights are turned on.

Accepting as true the evidence most favorable to plaintiff-which we must do in considering the questions involved on this appeal-can it be said, as a matter of law, that plaintiff was guilty of contributory negligence? That there is some substantial evidence tending to show negligence on the part of appellant (Truck No. 2) we think is clearly established. To drive into this dense cloud of smoke at a speed of 30 or 35 miles an hour, under the circumstances disclosed by the record, certainly presented a question of negligence for the jury to determine.

The more debatable question is whether it can be said, as a matter of law, that plaintiff failed to exercise that degree of care to avoid injury which would have been exercised by a person of ordinary caution and prudence under the same circumstances. In determining the question of contributory negligence we must measure the conduct of the plaintiff, not in the light of subsequent events, but by the standard of care which would have been exercised by an ordinarily prudent and careful person under the conditions then appearing to exist.

It is undoubtedly the law that a driver of a motor vehicle whose vision is obscured by fog or other weather conditions, dust or smoke, must exercise care commensurate with the danger involved. It is common knowledge that it is extremely dangerous to drive through smoke when the vision is almost completely obscured as in the instant case. What would an ordinarily prudent person have done under the same circumstances? Would he have a driven off the highway and stopped to wait for the smoke to disappear? Or would he have greatly reduced his speed, turned on his lights, and proceeded with the utmost caution? We think the average driver would have proceeded with caution although it is a question over which reasonable-minded persons might well differ.

Many collision cases have arisen where the vision was obscured by fog. Most courts hold that such weather conditions demand the exercise of a high degree of care but that it is not negligence as a matter of law to drive through fog. Silva v. Waldie, 42 N.M. 514, 82 P.2d 282; Devoto v. United Auto Transp. Co., 128 Wash. 604, 223 P. 1050; Rabenold v. Hutt, 226 Iowa 321, 283 N.W. 865; Peasley v. White, 129 Me. 450, 152 A. 530, 73 A.L.R. 1017. Any experienced driver knows that the utmost care must be exercised under such circumstances but that travel can be maintained with comparative safety when such care is exercised by those using the highway.

Undoubtedly, the same principles of law apply to smoke.

It is well to bear in mind that the truck and trailer of the plaintiff was not entirely in the smoke when the collision occurred. We refuse to hold, as a matter of law, that it was contributory negligence to enter the smoke at all. See Annotations 37 A.L.R. 587; 73 A.L.R. 1020. Plaintiff had the right, in the absence of knowledge to the contrary, to assume that due care would be exercised by the drivers of the trucks in front of him. He was not bound to anticipate that a collision between Trucks Nos. 1 and 2 would block the highway. Whether plaintiff should have anticipated such obstruction of the highway was a question for the jury under all the facts and circumstances of the case. It may be that, had the taillight on the rear end of the trailer on Truck No. 2 been burning, plaintiff would have been able to avoid the collision notwithstanding the density of the smoke. Alt v. Krebs, 161 Or. 256, 88 P.2d 804; Murphy v. Hawthorne, 117 Or. 319, 244 P. 79, 44 A.L.R. 1397; Rozycki v. Yantic Grain Prod. Co., 99 Conn. 711, 122 A. 717, 37 A.L.R. 582; Seibert v. A. Goldstein Co., 99 N.J.L. 200, 122 A. 821. Of course, it is possible that, had the taillight been burning, plaintiff could not have seen it on account of the smoke, but that, also, was a matter for the consideration of the jury. There is no evidence tending to show that the red taillight on Truck No. 2 was burning.

It is urged that it is negligence, as a matter of law, to drive a motor vehicle at such speed that it can not be stopped within the range of the driver's...