Knox v. Abrams

• Decision Date: 01 April 1930
• Parties: KNOX v. ABRAMS.
• Court: Oregon Supreme Court

286 P. 517

132 Or. 500

KNOX v. ABRAMS.

Supreme Court of Oregon

April 1, 1930

Department 1.

Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.

Action by Harlan W. Knox against Ben Abrams. From a judgment for plaintiff, defendant appeals.

Affirmed.

This is an action to recover damages for an injury sustained by the plaintiff when his automobile collided with another operated by the defendant. The collision occurred in the city of Portland, April 1, 1928, at 9:30 p. m. in the intersection of 39th and Knott streets. The course of Thirty-Ninth street is north and south, while that of Knott street is east and west the plaintiff was proceeding north and the defendant west. In their pleadings, each party charges the other with negligence. From a judgment in favor of the plaintiff, the defendant has appealed. The assignments of error challenge the order of the circuit court overruling the defendant's motion for a directed verdict, and also that court's instructions to the jury declaring the rules of law applicable to the right of precedence at a street intersection.

James L. Conley, of Portland (Wm. G. Dunlap and A. G. Fletcher both of Portland, on the brief), for appellant.

Harry E. Collier, of Portland (Collier, Collier & Bernard, of Portland, on the brief), for respondent.

ROSSMAN J. (after stating the facts as above).

For the purpose of disposing of the motion for a directed verdict, we must deem that the following contentions, all being supported by substantial evidence, are the facts of this case. As the plaintiff approached the intersection of Thirty-Ninth and Knott streets from the south he brought his automobile almost to a stop a car's length from the intersection and shifted into intermediate gear; at the same time he looked to his right along the course of Knott street and observed the lights of the defendant's car approaching from the right. At that time, the defendant was approximately 260 feet from the intersection, and the plaintiff believed that he could cross Knott street in safety before the defendant would reach that point. He proceeded; when his car had reached a point not more than five feet north of the center line of Knott street it was struck by the defendant's car. The latter had endeavored to swerve its course to the north, but struck the plaintiff's car upon its right front corner. Testimony favorable to the plaintiff indicated that the speed of the defendant's car was approximately thirty-five miles per hour. The defendant practically concedes that in determining what disposition should be made of the motion for a directed verdict we must assume that the foregoing are the facts of the case; he contends, however, that the evidence conclusively shows that after the plaintiff looked to his right as he approached the intersection he paid no further attention to the traffic approaching from that direction until after his car had passed beyond the center line of Knott street. An examination of the plaintiff's testimony indicates that he again looked to his right before he reached the north half of Knott street, and saw the defendant's car bearing down swiftly upon him; that he immediately applied his brakes, and that the collision occurred just as he passed into the north half of Knott street. Both streets are sixty feet wide.

The defendant contends that, even though the above constitute the circumstances present at the time when the two cars approached the intersection, he was entitled to the right of priority. 1927 Session Laws, c. 217, § 1, subsec. 7(a) provides: "Drivers, when approaching highway intersections, shall look out for and give right of way to vehicles on the right, simultaneously approaching a given point whether such vehicle first enter and reach the intersection or not; provided, that street and interurban cars and emergency vehicles shall have the right of way at all times at such highway intersections."

The defendant's interpretation of this section of our laws is set forth in the following requested instruction which he presented to the circuit court, and to which that court declined to subscribe. "Of two automobiles simultaneously approaching a given point in a street intersection the one approaching from the right has the right of way regardless of which automobile first entered the intersection. By 'simultaneously approaching' is meant approaching at such speed and from such distances that they will reach the same spot at the same time. If you find therefore, that the automobiles of plaintiff and defendant were simultaneously approaching the point where they later collided, you are instructed that plaintiff was guilty of negligence and that if such negligence contributed to and helped to cause the accident plaintiff cannot recover and your verdict must be for defendant."

It will be observed from a study of the defendant's requested instruction that under its terms the approach is simultaneous whenever two cars reach the point of intersection at the same time. Evidently he believes that the Legislature used the word "simultaneously" as denoting synchronism. Under this requested instruction, the approach of the two cars would be simultaneous in any of the following instances (1) Two cars are equally distant from the intersection and are proceeding at the same rate of speed; (2) the car to the right is twice as far from the intersection as the car to the left, but is proceeding twice as rapidly; (3) the car to the right is so far from the intersection and is proceeding at such a low rate of speed that it cannot reach the crossing point at the same time as the car to the left unless it greatly accelerates its speed; its operator noticing this fact, increases its speed sufficiently so that it reaches the intersection at the same moment as the other car; (4) the car to the right, after slowing down for the purpose of surrendering the right of way, resumes momentum and collides with the other. Since the defendant's requested instruction selects speed and distance as the determining factors, in all of the above instances the approach would be simultaneous. In fact, the relative position of the two cars, if the defendant's theory is correct, is a matter of no consequence; if the car to the right so adjusts its speed that it collides with the other, the approach would be simultaneous. Next, since the defendant's requested instruction determines the right to priority exclusively by the test of simultaneous approach, the car to the left in all of the above...