Henthorne v. Hopwood
| Decision Date | 21 October 1959 |
| Citation | 218 Or. 336,345 P.2d 249 |
| Parties | Vernon L. HENTHORNE, Administrator with the Will Annexed of the Estate of Flossie M. Henthorne, Deceased, Respondent, v. Burt HOPWOOD and William B. Hopwood, Appellants. |
| Court | Oregon Supreme Court |
Jack, Goodwin & Santos, Oregon City, and Philip A. Levin, Portland, for the petition.
Hibbard, Jacobs & Caldwell and Harold Uney, Oregon City, contra.
Before McALLISTER, C. J., and LUSK, PERRY, O'CONNELL and CRAWFORD, JJ.
The case is before the court on a petition for rehearing, and we deem it advisable to give a more detailed statement of the evidence than in our former opinion.
The accident occurred in Oregon City on October 10, 1955, at about 5:45 p. m. It was 'fairly dark', dark enough for automobiles to be driven with their lights on, and it was raining. Defendant, William Hopwood, was returning home from work driving a 1945 Chevrolet automobile which was owned by his father, Burt Hopwood. The latter is also made a party defendant, but for convenience we will refer to William Hopwood as though he were the sole defendant. His route took him east on 16th Street, which he had entered from Jackson Street. Two blocks east of Jackson Street, 16th Street is intersected by Harrison Street. Somewhere between this intersection and the next one to the east, the plaintiff met her death while she was crossing 16th Street from north to south and was struck by the Chevrolet.
Sixteenth Street is 40 feet wide from curb to curb, as is Harrison Street north of the intersection. South of the intersection, it is only 20 feet wide. Sixteenth Street going east is uphill, but levels off at the intersections. The crosswalk on the east side of the intersection was not marked.
The deceased, who was 65 years of age at the time of the accident, had been to a grocery store located on the north side of 16th Street, a block east of Harrison Street, and was returning home with her purchases. Beverly Partlow, at 12-year-old girl, saw the accident from the window of the living room of her home at the northeast corner of 16th and Harrison Streets. She was called as a defendant's witness and testified:
The witness explained later that by the words 'back of the car' she meant the 'top of it.' She testified that Mrs. Henthorne was carrying groceries cradled under her left arm and a raised unbrella 'kind of tipped' in her left hand. The driveway where the deceased started to cross the street was 46 feet 8 inches east of the east curb line of Harrison Street. The witness testified on cross-examination that the deceased 'walked at a kind of angle' as she crossed the street. After the accident, the defendant's car, according to this witness, came to a stop with its right front wheel just slightly off the street in the driveway of her house, headed approximately in a northerly direction.
The defendant gave testimony to the following effect: After turning from Jackson Street into 16th Street he drove in second gear for about half a block at a speed of about 5 or 10 miles an hour, then shifted into high and was following at a distance of three or four car lengths a Mercury car driven by Jim Greenslitt, an acquaintance. Before reaching the intersection, Greenslitt pulled to the right as far as he could preparatory to turning south into Harrison Street, and the defendant drove slightly to the left of the center of 16th Street as he passed Greenslitt. He estimated his speed at that time at 10 to 15 miles per hour, and as he entered the intersection at between 15 and 20 miles per hour, but he admitted that he had told an officer after the accident that his speed was 25 or 30 miles per hour. He thought he was traveling between 20 and 25 miles per hour when his car collided with the plaintiff. He saw the deceased when he was a foot or two away from her, applied his brakes and turned his wheel to the left and slid. The car was a foot or two to the right of the center of the street just before the collision. A milk carton carried by the deceased hit the windshield and covered it with milk, obscuring his view. The rear end of the car moved counter-clockwise and the car came to rest headed in a northeasterly direction, and a few feet east of the Partlow driveway. His left front wheel was a little north of the center of the street; his right front wheel was about on the center. At the suggestion of James Greenslitt, who had hurried to the scene, he moved his car to get it out of the path of traffic. He cramped the wheels as hard as he could and coasted it downhill to the curb. When his car came to a stop the body of the deceased was lying near the back wheel. He laid his coat over the body.
James Greenslitt saw the accident from his car, after he had pulled over to the right and was about to turn into Harrison Street. He testified that the defendant 1 The car traveled not more than 5 or 6 feet 'after she came over and fell into the street.' He explained later that the defendant's car was a little more than 25 or 30 feet from the edge of the curb when 'I saw her coming over,' that it was about 30 feet from the intersection when she was hit. The witness further testified that the deceased 'had on dark clothes * * * from her waist up, and they put a blanket and costs over her.'
Ver Leroy Flynn, a police officer of Oregon City, who arrived at the scene of the accident a few minutes after it occurred, testified as a witness for the plaintiff that the front end of the car, which by that time had been moved and was headed in a westerly direction, was 45 feet 5 inches from a Portland General Electric power pole at the northeast corner of the intersection of 16th and Harrison Streets, and that the deceased was lying 9 feet behind the left rear wheel of the Chevrolet. The power pole was 2 feet east of the east curb line of Harrison Street. This would place the deceased at least 70 feet east of the curb line. The foregoing testimony was based on measurements made by the witness. He further testified that the head of the deceased was a little north of the center line, and that the body was lying with its head to the southwest and the feet to the northeast.
The evidence establishes beyond question that Mrs. Henthorne was crossing 16th Street between intersections, in violation of the city's 'jaywalking' ordinance. How far she was from the nearest crosswalk when she was struck by the Chevrolet is not clear. As the crosswalk is 10 feet wide, the distance could have been found to be as little as 15 feet, on the basis of Greenslitt's testimony that the accident occurred 25 to 30 feet east of the east curb of the intersection. We therefore assume that this was the fact, in considering counsel's contention that the question of proximate cause was properly submitted to the jury and that this court erred in holding that the deceased was guilty of contributory negligence as a matter of law and that the circuit court, therefore, should have granted defendant's motion for a directed verdict.
Counsel for the plaintiff again argue that the jury could have found that the accident would have occurred even though the deceased had been in the crosswalk when she was struck. If that is a fair inference, deducible from the evidence, then we would agree that the question of proximate cause was for the jury. Loibl v. Niemi, 214 Or. 172, 177-178, 327 P.2d 786; Leap v. Royce, 203 Or. 566, 573, 279 P.2d 887; Staples v. Senders, 164 Or. 244, 255, 96 P.2d 215, 101 P.2d 232; Eklof v. Waterston, 132 Or. 479, 487, 285 P. 201, 68 A.L.R. 1002. We think, however, as we said in our former opinion that the argument is based upon conjecture, because it involves an attempt to determine, not what the defendant's behavior was, but what it would have been in other circumstances. It necessitates an inquiry into the question whether the defendant would have seen the deceased in time to avoid the collision and would have avoided it if the latter had been in the crosswalk and under the protection of the statute which would have given her the right of way. There is no evidence upon that question. The crosswalk constituted a warning to the defendant of the likelihood of the presence of pedestrians upon it. There is no evidence that the defendant did not give heed to that warning or that he was not keeping a proper lookout for pedestrians in the crosswalk, had there been any there.
The cases cited by counsel for the plaintiff in support of this contention are not, we believe, to the point. They involve violations of statutes which require vehicles to have a piece of equipment designed to give a warning to other users of the highway of the presence of such vehicles, as, for example, headlights on an automobile that are required to be lighted by a certain time after sunset. Compliance with the statute presumably will enable others to see the vehicle and avoid a collision with it. But if the circumstances are such that the other person saw, or in the exercise of reasonable care should have seen, the vehicle notwithstanding the absence of the required piece of equipment, then it may well be concluded that the accident would have occurred even though there had been no violation of the statute, and, therefore, it cannot be said that such...
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