Landis v. Wick

• Citation: 154 Or. 199,57 P.2d 759
• Parties: LANDIS v. WICK. [*]
• Decision Date: 12 May 1936
• Court: Supreme Court of Oregon

57 P.2d 759

154 Or. 199

LANDIS v. WICK. ^[*]

Supreme Court of Oregon

May 12, 1936

Department 1.

Appeal from Circuit Court, Yamhill County; Arlie G. Walker, Judge.

Action by Fred Landis against J. J. Wick. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

This is an appeal by the defendant from a judgment of the circuit court, based upon the verdict of a jury, in favor of the plaintiff, entered in an action instituted by the latter to recover damages for an injury he suffered when the bicycle upon which he was riding was struck by an automobile operated by the defendant.

Robert F. Maguire, of Portland (Maguire, Shields & Morrison and Donald K. Grant, all of Portland, on the brief), for appellant.

Francis E. Marsh, of McMinnville (Vinton, Marsh & Marsh and Lawrence Osterman, all of McMinnville, on the brief), for respondent.

ROSSMAN Justice.

December 17, 1934, at about 5:40 p. m., the plaintiff, while proceeding southerly upon his bicycle on the West Side Pacific Highway near Whiteson, was struck and injured by the defendant's automobile, which was going in the same direction. The principal contention presented by the defendant (appellant) is based upon an order of the circuit court which denied his motion for a directed verdict. The motion was predicated upon a contention that the plaintiff was guilty of negligence because his bicycle was not equipped with a light and a reflector as required by 1931 Session Laws, c. 360, p. 654, § 58 (f), and that this negligence contributed to his injury. Four additional contentions are: (1) Since the plaintiff admitted that his bicycle did not have the lighting equipment required by our statute, the burden rested upon him to prove that this negligence was not the proximate cause of his injury; (2) the court erred in failing to withdraw from the jury's consideration the complaint's charge that the defendant drove his automobile into collision with the plaintiff although he had observed the plaintiff in time to have avoided striking him; (3) the court erred in excluding evidence which tended to show the visibility at the time and place of the accident; and (4) the court failed to properly instruct the jury.

The scene of the accident was on a straight level stretch of concrete pavement a half mile long, 16 feet wide, and provided with broad shoulders. The defendant estimated his speed to have been between 40 and 45 miles per hour. Coming from the south at the moment of the collision was a car drive by one E. S. Talbot. Its lights were tilted downward. Talbot saw the plaintiff when he was 300 or 400 feet from him and also saw the defendant's car to the rear of the plaintiff. Defendant's car was less than four months old and its lights, which were burning, were also tilted to the pavement. One A. H. Freisen occupied the front seat with the defendant. About 150 feet behind the Talbot car was a car driven by one C. V. Graves, with lights burning. The defendant testified that he was looking straight ahead and, while wondering whether the Graves car intended to overtake the Talbot car, the following, according to him, occurred: "Pretty soon I saw something going up and down, just like that (indicating) in front of me, and just then Mr. Freisen-'Oh!' he says, and I stepped on the brake and I saw there was a man there, and I whirled to the left and took a chance that I would get across and just as soon as I got part way across I let go of the brakes again to get out of the way of the coming car, and I ran into a little bit of ditch." In this way the defendant's car struck the plaintiff and inflicted the injuries for which the latter seeks redress.

The plaintiff testified that he was riding his bicycle within 6 or 8 inches of the right-hand edge of the pavement. He wore blue overalls, rubber boots, a black raincoat, and a black hat. According to the plaintiff's witnesses, the pavement was white. The plaintiff admitted that his bicycle had neither a lamp on the front nor a reflector on the rear. Nineteen Thirty-one Session Laws, c. 360, p. 654, § 58 (f), requires that bicycles shall be equipped with a lamp on the front visible, under normal atmospheric conditions, from a distance of at least 300 feet, and "shall also be equipped with a reflex mirror or lamp on the rear exhibiting a red light visible under like conditions from a distance of at least 200 feet to the rear." Section 58 (a) of the same statute (page 652) provides that every vehicle during the period of a half hour after sunset to a half hour before sunrise shall illuminate its lighting equipment. December 17, 1934, the sun set at 4:27 p. m. According to the complaint, the accident happened "at about the hour of 5:45 o'clock p. m." The plaintiff testified that it happened between 5:30 and 5:40 p. m. He described the atmospheric conditions thus: "It wasn't day light and it wasn't dark. The sun had gone down, but the rays of the sun was still in the sky. It was twilight." To the inquiry of how far he could observe objects, he replied: "I would say 80 rod." And added that, when the Talbot car was 400 feet ahead of him, he looked beyond the rays of its headlights and saw the two occupants in its front seat. Talbot described the atmospheric conditions thus: "It wasn't really dark, nor it wasn't real light. It was just at twilight. It was a light evening, and dry." Mrs. Talbot, who was riding in the car with her husband, testified that on December 17th no rain had fallen and that the day was not cloudy. She swore: "It wasn't dark or night; it was early in the evening." She was asked whether there was any light in the sky, and replied: "Yes, there was. It was the sky shine with a light reflection from the sky. It wasn't real-sort of a twilight." A Mr. Robbins, who was a high school teacher at Amity, arrived at the scene of the accident a few moments after it had occurred and described the atmospheric conditions thus: "It was twilight I would say. It wasn't dark, it wasn't light. The sun had gone down-the sky was clear and it was quite light in the west especially, but there at the time, I would say, at twilight." At a distance of 200 feet from it he saw lying upon the road an object which was the plaintiff's body. One Hobaugh, who operated a small farm near Whiteson, gave the following description of the weather conditions: "Up until about five o'clock she was clear; up until six o'clock, I mean; and after six o'clock, why, the moon was up. I done all my chores without a lantern." The foregoing were plaintiff's witnesses. Defendant's witnesses were C. V. Graves, the driver of the car which was following the Talbot car, H. S. Farley, who was riding with Graves, A. H. Friesen, who sat in the front seat with the defendant, and Mrs. N. B. Crider, who rode in the rear seat of defendant's car. They testified that at the time of the accident it was dark, and that one could not see without lights. Defendant admitted that the pavement was dry.

The plaintiff contends that the testimony of himself and of his witnesses justifies a finding that at the time his misfortune occurred it was sufficiently light that the defendant could have seen him in time to have avoided striking him, and that, that being true, a further finding is authorized that the absence of a reflector upon the rear of the bicycle was not a concurring cause of the collision. The defendant contends that the evidence indicates the absence of a reflector was a concurring cause of the collision.

The principles of law applicable to defendant's first assignment of error seem to be simple and well established. Both sides agree that the last clear chance doctrine, as employed in this state ( Dorfman v. Portland Electric Power Co., 132 Or. 648, 286 P. 991), is not applicable to this action. If plaintiff's negligence was merely a contemporaneous condition, it will not defeat a recovery. For plaintiff's negligence to have such an effect it is not essential that it should have been the cause of the injury. If it contributed thereto, that will suffice. It is enough if his injury might have been avoided had he equipped his bicycle with a reflector. If the injury was the natural and probable consequence of the neglect, the needed relationship is established. Both negligence by the plaintiff and its necessary relationship to the injury must be shown. If the accident would have happened whether the reflector was in place or not, its absence was not a concurring cause of the plaintiff's injury. The statute, obviously, does not contemplate that reflectors shall be the sole warning to motorists of the presence of bicycles upon the highway. Nor does the statute intend that motorists shall look solely for reflectors, oblivious, in the meantime, of all other indications of the presence of bicyclists. The reflectors are intended to supplement whatever other warnings there may be. For instance, the bicycle itself may be visible whether protected by a reflector or not. Its movement or accompanying noises may be sufficient to apprise oncoming motorists of its presence; or it may be that street lights or automobile headlights point out its presence upon the highway. If the presence of a bicycle is indicated in the above or in any other manner in time to give an observant motorist a reasonable opportunity to avoid striking it, but if his attention is diverted and he runs down the bicyclist, then it cannot be said that the resulting injury was due to the absence of a reflector. However, both parties have cited and reviewed in their briefs many authorities. We shall now take note of them, reviewing first those cited by the appellant (defendant).

In Benson v. Anderson, 129 Wash. 19, 223 P. 1063, 1064 the plaintiff was walking across a bridge, 1,500 feet in length, pushing an...