Kuffel v. Reiser

• Decision Date: 07 March 1974
• Citation: Kuffel v. Reiser, 519 P.2d 365, 268 Or. 152, 98 Or.Adv.Sh. 1257 (Or. 1974)
• Parties: Rose KUFFEL, as Personal Representative of the Estate of Leonard E. Kuffel, Deceased, Appellant, v. Richard W. REISER and Danny D. Kinney, Respondents.
• Court: Oregon Supreme Court

Page 365

519 P.2d 365

268 Or. 152

Rose KUFFEL, as Personal Representative of the Estate of Leonard E. Kuffel, Deceased, Appellant, v.Richard W. REISER and Danny D. Kinney, Respondents.

Supreme Court of Oregon.

Argued and Submitted Dec. 3, 1973.

Decided March 7, 1974.

Dwight L. Schwab, Portland, argued the cause for appellant.On the briefs were Williamson & Whipple, St. Helens; and Hutchinson, Schwab, Burdick & Hilton, Portland.

Ridgway K. Foley, Jr., Portland, argued the cause for respondents.With him on the brief were Wayne A. Williamson, Mark H. Wagner, and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.

Before O'CONNELL, ^* C.J., and McALLISTER, DENECKE, HOLMAN, HOWELL and BRYSON, JJ.

BRYSON, Justice.

Plaintiff brought this wrongful death action which arose out of an automobile accident between the vehicle of Leonard Kuffel and a truck and trailer driven by defendant Kinney, an employee of defendant Reiser.Plaintiff's complaint charged defendants with negligence in several respects, and defendants' answer charged plaintiff with contributory negligence.Mr. Kuffel died of a heart attack shortly after the accident.The jury returned a general verdict in favor of defendants and plaintiff appeals.

The accident occurred on the morning of March 31, 1969, at the intersection of Old Portland Road and Kaster Road in St. Helens, Oregon.Approaching this intersection from the south, Kaster Road consists of three lanes; conforming to their designation at trial, we refer to these lanes, from east to west, as lanes four, five, and six.Lane six carries southbound traffic only.Northbound traffic usually travels in lane four to proceed north on Kaster Road, or to turn east onto Old Portland Road.Lane five is used most frequently by vehicles turning west, or to the left, to proceed on Old Portland Road.A traffic light controls entry into the intersection.

Both vehicles were traveling north on Kaster Road.Defendant Kinney was driving a truck and trailer approximately 50 to 55 feet in length.Mr. Kuffel was driving a 1962 Chevrolet automobile.

Defendant Kinney testified that he stopped for the red light in lane four (the right-hand lane), signaled a right turn, and when the light turned green he checked for traffic and commenced the turn at a speed of two to three miles per hour.As he crossed the center line on Old Portland Road he felt the trailer 'wiggle.'He assumed he had run over several small logs just off the right-hand side of the pavement which the owner of the corner tavern had placed there.After maneuvering the truck into a wider turn, Kinney glanced in his right rearview mirror and saw that the right side of the trailer and wheels had collided with the left rear portion of the Kuffel vehicle.Kinney got out of his truck and talked to Mr. Kuffel and called the police.Mr. Kuffel was suffering from a heart ailment and collapsed from an apparent heart attack some fifteen to twenty minutes after the accident.

Plaintiff's first assignments of error contend that the court erred in denying plaintiff's motions to strike two specifications of contributory negligence in defendants' answer and in instructing the jury on these allegations.The allegations charge plaintiff's decedent with contributory negligence (1)'In attempting to pass defendants' vehicle at an intersection of highways when said movement could not be made in safety'; and (2)'In attempting to pass defendants' vehicle on the right at a time when the driver was signalling for a right turn and engaged in turning to the right.'

In determining if there is any substantial evidence to support these allegations we review the evidence in the light most favorable to defendants.Hess v. Larson, 259 Or. 282, 284, 486 P.2d 533, 534(1971).Defendant Kinney and the deceased driver, Kuffel, discussed the accident immediately after it happened.Kinney testified:

'* * * I asked him (Kuffel), sir what are you doing there.And he says, I was going to go around you.He said, I thought that you was going to go straight ahead.I turned back to the truck and pointed at it and said, didn't you see my turn signals and he said no, I never looked; I never seen them; I didn't pay any attention. * * *'

This and other evidence in the record, including photographs of the scene and the vehicles, support the inference that Mr. Kuffel may have attempted to overtake and pass the truck on the right and enter the intersection before the large truck could respond to the green light.We find that the rulings on plaintiff's motions and the instructions to the jury were fully supported by the evidence.

Plaintiff charged defendants with negligence in failing to keep a proper lookout and in failing to keep their vehicle under control, along with other specifications of negligence.After both parties rested their case, the court on its own motion struck the allegation concerning lack of control and instructed the jury to disregard it.Both parties submitted all of their evidence to the jury.This ruling and instruction are assigned as error by the plaintiff.

The withdrawal of the allegation of lack of control was tantamount to a ruling that in view of all the evidence defendants were not guilty of a lack of control, or that their lack of control was not a proximate cause of the collision.Carter v. Moberly, 263 Or. 193, 204, 501 P.2d 1276, 1281(1972).We review all the evidence to determine whether the record supports plaintiff's position.SeeRogers v. Green, 241 Or. 435, 437, 406 P.2d 553, 554(1965);Krening v. Flanders, 225 Or. 388, 390--391, 358 P.2d 574, 576(1961).

Police Officer Paul Cade, who arrived at the scene after the accident, testified that he spoke with both drivers and was told that Kuffel was in lane four and Kinney was in lane five when Kinney commenced his turn.According to Cade, Kinney stated that he had to be in the middle lane to negotiate the right turn from Kaster Road onto Old Portland Road.Cade testified that Kuffel stated that 'the truck just pulled to the right' and forced him off the road.

There was additional evidence that Kinney was unable to see traffic to the right of the truck in the right rearview mirror due to the slight angle at which Kinney stopped the truck at the intersection.Despite this lack of visibility, Kinney immediately turned right when the light turned green.When he felt the trailer 'wiggle,'he did not stop the truck to determine what he had hit, but, instead, continued to turn the corner and traveled 50 feet from the moment of the collision until the time he learned of the accident and stopped.During this time Kinney was unable to see that his trailer had collided with Kuffel's vehicle.

Plaintiff contends that these facts...