Kiddle v. Schnitzer
| Decision Date | 21 October 1941 |
| Citation | 167 Or. 316,117 P.2d 983 |
| Parties | KIDDLE v. SCHNITZER et al. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.
Chester E. McCarty, of Portland, for appellant.
Donald K. grant and Randall B. Kester, both of Portland, for respondents.
The appellant in his petition set forth six reasons why this court should grant him a rehearing. They are the following:
A rehearing was had. Only one of the above-mentioned grounds for requesting a rehearing was discussed in the petitioner's brief or touched upon in the oral argument. That was our holding that the trial court did not err in submitting to the jury the question of the insufficiency or defectiveness of the lights of the plaintiff's automobile.
The fourth and fifth grounds assigned in the petition are fully covered by the original opinion. As to the second and third grounds, there was evidence from which the jury could have found that there were lights on the truck and both lights and a reflector on the trailer, and could further have found that there was no vehicle or obstruction on the left side of the highway at the scene of the accident.
In order to ascertain what are the questions presented to this court on appeal, we are guided by the assignments of error contained in the appellant's opening brief. Only three assignments were mentioned by the appellant herein, namely:
The principal question left for consideration is whether there was substantial evidence from which the jury could find that the plaintiff's headlights were either defective or inadequate. Before discussing this matter, it is advisable to refer to the testimony in the case as to the lights and reflectors on the defendants' truck and trailer.
The defendant Carroll, driver of the truck at the time of the accident, testified that he had left Pendleton about 4 o'clock in the afternoon and that the accident occurred about 5:35. He then gave the following testimony
Mr Fitch, who was a service station operator at Pendleton, Oregon, testified that the defendants' truck and trailer were at his place of business most of the day of the accident, undergoing repairs. He stated that he had observed the lighting equipment, "checked all of the lights" on the truck and trailer, immediately prior to Carroll's leaving Pendleton. This further testimony was then given by him: "There were two dimension lights on the back of the trailer at the outside of the steel bolster, both burning at that time, and there was a taillight on the reach and a reflector on the end of the reach also, both the reflector and light were on the reach; on the front of the truck there were two amber lenses and on the rear-view mirror of the truck there was another amber lens in the truck, definitely to define the side of the truck itself for a passing car to go around it."
On cross-examination this witness testified that the clearance lights on the truck and trailer and the taillight on the end of the trailer were all burning when the truck left his station. He also stated that the taillight on the trailer was "on the same lighting arrangement with the clearance lights on the trailer."
According to the weather report introduced in evidence, the sun set at Pendleton on the day of the accident, November 6, 1938, at 4:36 o'clock.
A state police officer called as a witness, on cross-examination by plaintiff's counsel, gave the following testimony:
The testimony of this witness differs somewhat from that of the truck driver and the service station operator, as to the location of the reflector on the trailer and the presence of any light on the trailer. It is not our function, however, to resolve the conflicts in testimony. That is the province of the jury. It is sufficient to say that there was evidence from which the jury could have found not only that there was a reflector on the end of the trailer, which was not concealed by any overhanging load, but also that there were lights on the rear of the trailer and on the sides of the truck and the trailer.
It is not our purpose here to restate what was said in our former opinion regarding the sufficiency of the evidence to place before the jury the question of adequacy of the headlights on the plaintiff's automobile. The collision which caused the plaintiff's injury was the result of his driving his car into the rear end of another vehicle ahead of him on the highway. According to his own testimony, the plaintiff did not see the defendants' truck and trailer in time either to stop his car or turn it to the left side of the highway. If he had seen the truck at a distance of 200 feet prior to the collision, he undoubtedly would have had time to steer his car to the left and avoid striking it, or to bring his car to a stop, if not traveling at a speed greater than that to which he testified, 45 miles an hour. The further fact that the plaintiff did not see the reflector on the end of the trailer is some evidence that he either was not keeping a proper lookout or that his headlights were defective.
It is true that the plaintiff testified that his car was a Chevrolet about three and a half months old, driven some 7000 miles, and that he supposed that his automobile was He further stated that at the time of the accident his lights were turned on "bright". No evidence was produced of any inspection made of his lights. He did not know the radius of their beam. Nor did he know how far the truck was ahead of him when he first saw it.
In 2 Berry on Automobiles, 7th Ed., § 2.932, page 443, is the following statement: "It has been held to be negligence for the driver of an automobile to drive on a highway at night at such a rate of speed that he can not stop in time to avoid objects after they come within the area lighted by his lamps." Cases from many states supporting the text are cited below this section, both in the permanent volume and in the pocket supplement.
In 1 Blashfield's Cyclopedia of Automobile Law and Practice, Perm.Ed., § 741, decisions from many jurisdictions are cited to the proposition that "the rule accepted by the great weight of the authorities is that a driver is not exercising ordinary care and is negligent, if he proceeds at such a speed in the dark that he can not bring his automobile to a standstill within the distance that he can plainly see objects or obstructions ahead of him by the light of his own lamps or other available light."
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