Gilman v. Olson

• Decision Date: 27 March 1928
• Citation: 125 Or. 1,265 P. 439
• Parties: GILMAN v. OLSON ET AL. TODD v. OLSON ET AL.
• Court: Oregon Supreme Court

265 P. 439

125 Or. 1

GILMAN v. OLSON ET AL. TODD v. OLSON ET AL.

Supreme Court of Oregon

March 27, 1928

Department 2.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Separate actions by Verna Gilman and by Susie H. Todd against David E Olson and another. Actions tried together. From judgments for the plaintiff in each action, defendants, appeal. Judgments affirmed.

Howard M. Brownell, of Eugene (Wells & Wells, of Eugene, on the brief), for appellants.

F. C Heffron, of Eugene, for respondents.

BEAN J.

These two cases were tried at the same time. They involve actions for damages for injuries to the plaintiffs resulting from an automobile collision occasioned by the alleged negligence of defendants. A verdict was rendered in favor of plaintiff Verna Gilman for the sum of $766.15, and a verdict in favor of Susie H. Todd, for the sum of $337.50. Defendants appeal from the consequent judgments.

The accident occurred November 30, 1924, at the intersection of Mill street with Twelfth Avenue East, in the city of Eugene, Or. The plaintiffs were riding in a Dodge automobile, which was being driven south on Mill street by George L. Todd. A car owned by the Guaranty Oil Company driven by David E. Olson, its president and manager, was going east on Twelfth Avenue East. It is alleged that the car of the company was negligently and recklessly driven by defendant Olson into said Dodge automobile, in which the plaintiffs were riding, and wrecked the Dodge automobile and seriously injured plaintiffs.

There are two assignments of error relied upon on this appeal. The defendants assign as error the instruction of the court given to the jury, after quoting the statute on the right of way at highway intersections, and interpreting the statute to the jury, as applied to the facts testified to in the case with reference to first entering the intersection, as follows:

"If you find from the evidence in the case that, at the time the plaintiff approached the intersection of Mill street and Twelfth Avenue East, Olson's car was not then approaching, or was not simultaneously approaching the intersection of said streets, then I instruct you that the plaintiff would have a right to proceed through the intersection, and, if you find from the evidence in the case that, after the plaintiff had entered the intersection of Twelfth Avenue East and Mill street, the Olson car approached the intersection, then I instruct you that the plaintiff would have the right of way, and under the statute it would have been the duty of the defendant Olson to stop and give way until the plaintiff had traversed the intersection, and, if you find from the evidence in the case that the plaintiff had entered the intersection and was in the intersection when Olson approached the intersection of said streets, and if Olson did not give way and the collision resulted, and if that was the proximate cause of the accident, then I instruct you that it would be a violation of the statute and defendant Olson would be guilty of negligence per se--that is, negligence in and of itself--and in that event, if you find that state of facts existed at the time of the accident, the defendants would be liable, and your verdict should be for the plaintiff."

Defendants reserved an exception to this portion of the charge to the jury.

General Laws of Oregon, 1921 c. 371, § 2, subd. 7, p. 710, provides, in part, that--

"Drivers, when approaching highway intersections, shall look out for and give right of way to vehicles on their right, simultaneously approaching a given point."

Defendants contend that the court erred in instructing the jury that, if they found from the evidence that the car in which plaintiffs were riding had entered the intersection first, the plaintiffs would have the right of way, and that the failure of the defendant to give way would be a violation of the statute and constitute negligence per se.

Their contention is that the statute requires the driver of a car to look out for and give right of way to vehicles on their right "simultaneously approaching a given point." "The fact that his car may have entered the intersection first does not relieve the driver on the left from his duty under the statute, to look out for and give way to...