Johnson v. Bennett

• Jurisdiction: Oregon
• Parties: Roy JOHNSON, Appellant, v. Dene BENNETT, Respondent.
• Citation: Johnson v. Bennett, 357 P.2d 527, 225 Or. 213 (Or. 1960)
• Court: Oregon Supreme Court
• Decision Date: 14 December 1960

Page 527

357 P.2d 527

225 Or. 213

Roy JOHNSON, Appellant, v.Dene BENNETT, Respondent.

Supreme Court of Oregon.

Argued and Submitted Nov. 2, 1960, at Pendleton.

Decided Dec. 14, 1960.

Wendell Gronso, Burns, argued the cause for appellant.On the briefs were Cramer & Gronso, Burns.

Winfrid K. Liepe, Portland, argued the cause for respondent.On the brief were Maguire, Shields, Morrison, Bailey & Kester, Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and KING, JJ.

KING, Justice pro tem.

This is an action for personal injuries sustained by the plaintiff, who was struck by defendant's car as he was crossing the street between intersections in Burns, Oregon.The jury returned a verdict for the defendant, and plaintiff brings this appeal.

At about 11 o'clock p. m., June 7, 1957, the plaintiff, Roy Johnson, accompanied by Louis Griggs, was walking diagonally across Monroe street, in Burns, Oregon.They started from the plaintiff's automobile and garage business near the northeast corner of the block at the intersection of Buena Vista avenue and Monroe streets and walked in an almost straight line diagonally towards a drive-in cafe located on the southwest intersection of Monroe and Court streets.

Monroe street, which is also called Oregon State HighwayNo. 395andUnited States HighwayNo. 20, runs approximately east and west and at the west end of the 200 block is intersected by Court avenue, running approximately north and south, and at the east end of said 200 block is intersected by Buena Vista avenue, which also extends north and south.

There were marked crosswalks across Monroe street at both the north and south ends of the 200 block.Vapor street lights were installed at each of the intersections.

When the plaintiff stepped off the curb, he noticed some cars coming from the west on Monroe street, a block or more away.He also saw the lights of defendant's car approaching from the east and down the same side of the street the plaintiff was on and a block or more away.

The plaintiff and Mr. Griggs were walking shoulder to shoulder and when they were about 108 feet from the northeast corner of the block and facing southwest, they stopped to allow the cars coming from the west to pass.Mr. Griggs was on or very close to the yellow center line of the street, and plaintiff was approximately 1 1/2 feet from the yellow line on the north side, by reason of the fact that they were walking shoulder to shoulder but diagonally across the street, while the yellow line ran straight with the street.

About the same time that the first car from the west passed in front of the plaintiff and Mr. Griggs, the defendant's car, coming from the east, struck the plaintiff, breaking his leg and causing some other lesser injuries.

At the close of plaintiff's case the defendant moved for a nonsuit, which was denied.At the close of all the testimony the defendant moved for a directed verdict, which was also denied.The case was submitted to the jury and, as before mentioned, the verdict was for the defendant.

The plaintiff contends that certain instructions given the jury were improper and that all of his allegations of negligence should have been submitted to the jury.The defendant, in addition to taking the opposite stand on plaintiff's assignment of error, urges that nonsuit and directed verdict should have been granted.

The plaintiff sets forth nine assignments of error.Instead of taking them up in the order listed, we will consider the claimed improper instructions first.

Assignment of error No. 4 was based on the court's failure to give the requested instruction as follows:

'The law does not prohibit a pedestrian from crossing a street or highway at the point that Mr. Johnson was crossing in this case.However, every pedestrian crossing a roadway at any place other than within a marked or unmarked crosswalk shall yield the right-of-way to vehicles upon the roadways, but this law does not relieve the driver of a vehicle or a pedestrian from the duty to exercise due care.

'It is not negligent for a pedestrian to go across the street other than at an intersection or a regular crossing.

In crossing a street between intersections, a pedestrian must exercise that care which an ordinary, prudent person would exercise in making a similar attempt, and to use care commensurate with the danger arising from the fact that drivers of vehicles may anticipate less travel on street [sic] at such places.'(Emphasis supplied.)

The main fault in the above instruction is in italics.A pedestrian crossing between marked crosswalks may or may not be negligent, depending on the other conditions, actions and circumstances.

The court in its instructions properly covered all the requested instruction that should have been given.

Plaintiff's assignment of error No. 5 was the failure of the court to give plaintiff's requested instruction No. 4.

Without setting the request out in detail, we point out the court did give the first two paragraphs thereof.

The part not given reads as follows:

'A person driving an automobile is driving a machine capable of doing great damage, if not handled in a careful and prudent manner, therefore, it takes more care on the part of the driver of an automobile to amount to reasonable care in the situation than is required of a pedestrian crossing a street or highway.'

This court in Cederoth v. Cowles, Or., 356 P.2d 542, which was decided after the trial of the case at bar, held that failure to give the above instruction was not error.We adhere to that decision.Cline v. Bush, 152 Or. 63, 52 P.2d 652;Bracht v. Palace Laundry Co., 156 Or. 151, 159, 65 P.2d 1039;Sherrard v. Werline, 162 Or. 135, 162, 91 P.2d 344;Larkins v. Utah Copper Co., 169 Or. 499, 512, 127 P.2d 354.

Assignment of error No. 6 was failure of the court to give the following requested instruction:

'Where a driver's vision is obstructed by blinding lights of another automobile, he is not relieved of his duty to exercise reasonable care for pedestrians and he may be obliged to stop or to slow down as circumstances might dictate even though he is not aware of the presence of a pedestrian and it is your duty as members of the jury to determine whether or not a reasonable and prudent person under the same circumstances would stop or slow down, taking into consideration that pedestrians have a right to cross the street at that particular place and the vision that the driver might have had at that particular place and the vision that the driver might have had at that particular time.'

It was not error to fail to give the above instruction.Among other things, it leaves out entirely the duty of the pedestrian to yield the right of way outside of crosswalks and gives the impression that the pedestrian had an absolute right of way at that particular point.It was covered in proper manner by the court in other instructions.

AssignmentNo. 7 is failure to give the following instruction:

'In passing a pedestrian on the highway the motorist must take care not to injure him and having ample space to pass him must keep out of his way and not drive so close that a slight deviation by the pedestrian will cause an accident.'

This instruction is abstract.It could be construed to indicate that the motorist intentionally drove as close to the pedestrian as possible, and again it leaves out of consideration the duties so far as yielding right of way are concerned and places an absolute duty on the motorist to know at all times where the pedestrian is and what he might do.The trial court fully covered the duties of both the plaintiff and the defendant in its instructions.

Assignment of error No. 8 is based on failure to give the following request:

'The drive of a motor vehicle must anticipate the presence of other persons on the highway.He must be alert and keep a proper lookout for them, in the performance of his duty, to exercise ordinary care.When the view of the driver is obstructed, it is his duty to see pedestrians on the highway in front of him and he is chargeable with the knowledge of what a prudent and vigilant driver would have seen.A motorist who looks without seeing a pedestrian who is in plain sight is as negligent as if he did not look at all.'

Again, this instruction contains many statements that are abstract.For instance, the last sentence of the instruction assumes or at least indicates that the plaintiff was in plain sight of the defendant, when the facts of the case from which the jury must decide could be construed in the opposite manner.

The trial court fully covered the duties of the defendant driver as to lookout, control and instructed 'that he has no right to assume that the road is clear, but under all the circumstances and at all times must be vigilant and expect the presence of others.'

The plaintiff, as his assignment of error No. 9, objects to an instruction given by the court on sudden emergency.We will not set the instruction out in full here; suffice it to say it was proper as given and fully complied with the requirements of a sudden emergency instruction.Goebel v. Vaught, 126 Or. 332, 336, 269 P. 491;Prauss v. Adamski, 195 Or. 1, 244 P.2d 598;Tuite v. Union Pacific Stages et al., 204 Or. 565, 595, 284 P.2d 333;Hall v. Tams, Or., 346 P.2d 1115.

Assignment of error No. 1 was that the court erred in overruling objections to a question to witness Robinson on cross-examination as follows:

'Q.Has anybody, as you drove that car, ever blinked their lights when you have your lights on dim, in an effort to try to get you to dim them?

'Mr. Gronso: I object to that as being completely beyond the scope of cross-examination, your Honor.What somebody else might have done has no probative value in this case.

'The Court: The objection will be overruled.'

Mr. Robinson was the driver of the first car coming in the opposite direction.He had been asked this question on...