James v. Carnation Co.
Decision Date | 19 April 1977 |
Citation | 562 P.2d 1192,278 Or. 65 |
Parties | Martha R. JAMES, Respondent, v. CARNATION COMPANY and Danie P. Stevens, Appellants. |
Court | Oregon Supreme Court |
[278 Or. 66-C] Edwin J. Peterson, Portland, argued the cause for appellants. With him on the briefs were Charles R. Holloway, III and Tooze, Kerr, Peterson, Marshall & Shenker, Portland.
John R. Faust, Jr., Portland, argued the cause for respondent. With him on the brief were Hardy, Buttler, McEwen, Weiss & Newman, and Jerome E. LaBarre, P.C., Portland.
Before DENECKE, C.J., and McALLISTER,* O'CONNELL,** HOLMAN, HOWELL, BRYSON and BOHANNON, JJ.
Plaintiff Martha R. James brought this action against the Carnation Company and its driver employee to recover damages for personal injuries suffered in a motor vehicle accident on US Highway 26. The jury returned a verdict finding defendants 63 percent negligent and plaintiff 37 percent negligent. Judgment was entered in plaintiff's favor. Defendants appeal.
Included among defendant's numerous assignments of error is the denial of their motion for a nonsuit and motion for a directed verdict. When determining the propriety of a motion for nonsuit or a directed verdict, we view the facts in a light most favorable to the plaintiff. Scott v. Mercer Steel/Edwards Realty, 263 Or. 464, 466--67, 503 P.2d 1242 (1972).
The accident occurred at approximately 6:30 a.m. on September 28, 1972, when plaintiff, driving westerly on US Highway 26 on her way to work, drove her automobile into the rear of defendants' disabled delivery truck. The truck was parked approximately 458 feet west of the US 26 exit to the zoo, in a paved area to the right of the three lanes marked for normal traffic. 1 Official sunrise that day was 7:05 a.m. and weather conditions were described as cloudy or overcast. Witnesses who drove past the scene of the accident reported that the truck was visible at a distance of some 500 feet; however, one witness testified:
'Q Could you see people or vehicles clearly at a distance of 500 feet without lights at that time?
'* * *.
'A I don't believe so.'
Witnesses also testified that they saw no lights on the truck and that most of the other cars then using US 26 had their lights on. The weather was 'overcast' and the pavement was dry.
There was expert testimony that the truck, though painted red and white and relatively large, 2 would be difficult to see in early dawn light. The truck was equipped with reflectors.
Plaintiff suffered brain damage and amnesia as a result of the accident and had no recollection of the accident or the events leading up to it. Stevens testified that he did not see or hear plaintiff's car until it struck his truck. 3 There is no direct evidence as to how long plaintiff had been driving in this auxiliary area before she ran into defendants' truck, why she was using it, or whether she did or did not see the truck. Expert opinion was offered that the design of the exit from US 26 to the zoo is such as to mislead motorists off of the main highway and into the area where defendants' truck was parked.
A police officer who arrived shortly after the accident testified tht he observed no skid marks, and expert testimony placed plaintiff's speed at the moment of impact at between 32 and 41 miles per hour. Plaintiff's expert further testified that the wheels of plaitniff's car showed no evidence of braking. At the moment of impact plaintiff's car was north or to the right of the 'fog line,' just inches from the nine and one-half inch high curb bordering the north side of the auxiliary area.
Defendants' motion for a nonsuit was as follows:
'* * * I move the Court for a judgment of nonsuit on the grounds and for the reason there is no evidence proving, or tending to prove that the defendants were negligent in any of the respects charged by the plaintiff; and two, that there is no evidence proving, or tending to prove that, assuming there is evidence of negligence, that in any way it was a material or substantial cause of the accident. * * *'
Defendants' motion for a directed verdict is supported by essentially the same argument. The examination of evidence to determine if there is any substantial evidence, both as to negligence and causation, from which a jury could reach a verdict in favor of the plaintiff is one of the most difficult tasks for a trial or appellate court. An examination of our numerous cases on this issue shows that the question of the evidence in each case is so diverse that decisions are reached almost on an ad hoc basis. This case is complicated by the plaintiff's inability to testify.
[2,3] Nevertheless, a nonsuit or directed verdict should be entered only in exceptional cases where, from the facts, reasonable men could draw but one inference and that inference supporting the conclusion that defendants were not negligent; or that defendants' negligence was not the factual or legal cause of plaintiff's injury. Law v. Kemp, 276 Or. 581, 556 P.2d 109 (1976); Oregon Auto. Ins. Co. v. Fitzwater, 271 Or. 249, 259, 531 P.2d 894 (1975); Carlson v. The May Dept. Stores, 270 Or. 289, 292, 527 P.2d 252 (1974); Cutsforth v. Kinzua Corp., 267 Or. 423, 432, 517 P.2d 640 (1973); Skeeters v. Skeeters, 237 Or. 204, 214, 389 P.2d 313, 391 P.2d 386 (1964); Eitel v. Times, Inc., 221 Or. 585, 592--95, 352 P.2d 485 (1960); Ellenberger v. Fremont Land Co., 165 Or. 375, 385--86, 107 P.2d 837 (1940). We examine the facts to determine whether there was sufficient evidence from which, if believed, the jury could probably find negligence on the part of the defendants and that such negligence caused the accident and injuries. See dissenting opinion in Berg v. Mengore, 271 Or. 530, 538, 533 P.2d 801 (1975).
In the present case, there is evidence from which a jury could reasonably conclude that it was more likely than not that both plaintiff and defendants were negligent. It was testified that the accident occurred more than one-half hour before sunrise; 4 that most vehicles using the highway at that time had their lights on; that an object such as the truck would be difficult to see in the pre-dawn light; and that the truck did not have its lights on.
This evidence may also support theories that factors other than the visibility of defendants' truck were the cause of the accident. However, as we noted in Eitel v. Times, Inc., supra, 221 Or. at pages 592--96, 352 p.2d 485, it is not necessary that the plaintiff offer evidence eliminating all possible causes of the accident not involving defendants' negligence. It is sufficient that there be evidence from which the jury can determine that it is more probable than not that defendants' negligence was a 'substantial factor' in causing plaintiff's injury.
In Pattle v. Wildish Construction Co., 270 Or. 792, 798--99, 529 P.2d 924, 927 (1974), we quoted from Kaufman v. Fisher, 230 Or. 626, 639--40, 371 P.2d 948 (1962), in part, as follows:
2 Harper & James, Torts § 15.2, p. 879 (1956).
See also Conger v. Dant & Russell, Inc., 250 Or. 480, 484, 443 P.2d 201 (1968). Although the decision is a difficult one, we conclude the trial court did not err in denying defendants' motions.
Defendants' second set of objections pertains to the applicability of ORS 483.456(2) (amended Oregon Laws 1975, ch. 451, Sec. 259), which provided 'Whenever any motor truck, motor bus or truck trailer is disabled during the period when lighted lamps must be displayed on vehicles and such vehicle cannot immediately be removed from the main-traveled portion of a highway outside of a business or residence district, the driver or other person in charge of the vehicle shall cause flares, lanterns or other signals to be lighted and placed upon the highway * * *.'
The trial court took 'judicial notice' that the accident occurred 'outside of a business or residence district' and instructed the jury accordingly. But the court instructed the jury that if they found the auxiliary area in which defendants' truck was stopped to be a 'main-traveled portion of a highway,' the defendants would be presumably negligent in failing to set out warning lights. Defendants argue that ORS 483.456(2) is inapplicable as a matter of law to the facts of this case because (1) the accident did not occur 'outside of a business or residence district,' and (2) the truck was not parked on the 'main-traveled portion of a highway.' 5
First, the question of statutory meaning and legislative use of the words 'outside of a business or residence district' and 'main-traveled portion of a highway' is a question of statutory interpretation and, as such, is decided by the court as a matter of law. 6 In Pio v. Adcco, Love's Enter./ Kent, 267 Or. 540, 543, 517 P.2d 1189, 1191 (1974), we observed that '(s)tatutes are to be construed so as to carry out the intent of the legislature.' See also Parr v. Dept. of Rev., 276 Or. 113, 116--17, 553 P.2d 1051 (1976).
[8,9] In determining legislative intent, ...
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