Landis v. Wick

• Citation: 154 Or. 199,59 P.2d 403
• Parties: LANDIS v. WICK.
• Decision Date: 14 July 1936
• Court: Supreme Court of Oregon

59 P.2d 403

154 Or. 199

LANDIS v. WICK.

Supreme Court of Oregon

July 14, 1936

Department 1.

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

On petition for rehearing.

Petition denied.

For former opinion, see 57 P.2d 759.

Robert F. Maguire, of Portland (Maguire, Shields &amp 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.

The petition for a rehearing and the comprehensive brief accompanying it challenge the propriety of our previous decision in its entirety. They, however, offer no serious criticism of our narrative of the facts.

The appellant (petitioner) argues again that the plaintiff's infraction of 1931 Session Laws, c. 360, pp. 652, 654, § 58(f), by his failure to have upon the rear of his bicycle at the time of the collision a reflector or a red lamp, was not only negligence, but that the law of contributory negligence demands a conclusion that the omission was a contributing cause of the plaintiff's injury, thus entitling the defendant to a directed verdict. Appellant's brief states:

"The law declares (1) that he who operates a bicycle after a certain hour without a red rear light or reflector is in danger of being hit from the rear by an overtaking vehicle that the lack of such a light creates a hazard; (2) to avert such collision the law requires the bicycle to display a rear light or reflector giving warning for a distance of 200 feet.

"3. The plaintiff displayed no such warning, light or reflector.

"4. In so doing he was negligent.

"5. He was hit from the rear.

"6. The danger sought to be averted occurred.

"This constitutes contributory negligence as a matter of law from the consequences of which plaintiff can only escape by pleading and proving that the defendant actually saw him in time to have avoided hitting him, and this is the same rule which you adopted in all your previous cases: Plinkiewisch v. Portland Ry., Light & Power Co., supra; Stewart v Portland Ry., Light & Power Co., supra; Dorfman v. Portland E. P. Co.; Morser v. Southern Pacific, supra; Emmons v. Southern Pacific Co., supra, and a dozen others and is the general, law of the land."

The appellant evidently believes that in all instances where these six elements are present all reasonable men draw the conclusion that the automobile struck the bicycle because the latter carried neither light nor reflector. We believe, however, that many reasonable men believe that the absence of the light upon the bicycle under such circumstances is not of necessity the cause of the collision. We all know that many rear-end collisions occur upon both the highway and the railway tracks in broad daylight. We know that not infrequently an automobile collides with the side of a train or other stationary object in the daytime. The absence of a lookout ahead sometimes accounts for these accidents. Fog in the daytime or a blinding light at night may conceal the object ahead. The absence from the appellant's compilation of the seventh element necessary to support his conclusion, that the absence of the light upon the bicycle was the cause of the collision, is significant. In our previous opinion we reviewed several decisions which hold that when substitute lights are present which clearly render the bicyclist visible, his failure to carry a reflector or a light is not necessarily the cause of his injury when struck from the rear by an overtaking car. To these decisions, we add the following review. In each instance the decision from which we shall now quote, in our opinion, supports our previous conclusion. From Osbun v. De Young, 99 N.J.Law, 204, 122 A. 809, 812, we quote: "It is further insisted for appellants that the court erred in refusing to charge the following requests: 'That if the jury believe that there was no tail light on the Martin truck at the time of the accident, or if there was a tail light such as Martin described, that Osbun and Hart obscured it from the view of Welsh, then the plaintiffs were guilty of contributory negligence, and they cannot recover.' This request is manifestly unsound as a legal proposition, in that it erroneously assumes that, in the absence of a tail light on the truck or its obscuration by Osbun and Hart, the plaintiff is debarred of a recovery, regardless of the fact whether or not either of the circumstances alluded to was the result of negligence and a proximate contributing factor to the defendants' negligence that caused the plaintiff's injury. For it is firmly settled that it is only where the plaintiff's act is a negligent one, and proximately contributes to the defendants' negligence that caused the plaintiff's injury that the latter is debarred of a recovery."

From Simpson v. Miller, 97 Mont. 328, 34 P.2d 528, 531, we quote: "Every motor vehicle operated or driven on the highways, must 'between one hour after sunset and one hour before sunrise *** display two white lights in front,' etc. Section 1753, Rev.Codes 1921. A violation of the statute constitutes negligence, but in considering whether or not such negligence contributed to the accident or barred recovery, we must take into consideration the conditions existing at the time and place of the accident. Knott v. Pepper, 74 Mont. 236, 239 P. 1037. The mere fact that a vehicle is on the road without lights, contrary to the requirements of the law, does not excuse the driver of another vehicle from the effect of running into it if the road is so lighted that it was clearly visible and he could have avoided the collision by the exercise of ordinary care; whether or not these facts exist is a question for the jury. Decou v. Dexheimer (N.J.Sup.) 73 A. 49. Herein, instructed that the plaintiff was negligent and that they should find for the defendant if they found from a preponderance of the evidence that such negligence contributed to his injury, the jury found for the plaintiff, and there is substantial evidence in the record that the Myhre car was plainly visible from a much greater distance than the corner from which the defendant saw it; it was practically under a street light. *** The evidence, therefore, warrants the implied finding that the fact that the car was not carrying headlights did not contribute to the injury, and that the plaintiff was not guilty of contributory negligence in failing to drive the car off of the street or to himself leave the car in order to avoid injury. As well might a pedestrian be presumed to expect that a motorist would suddenly drive his car across the curb and onto the sidewalk and consequently be held guilty of contributory negligence in failing to avoid being struck by entering an adjacent building."

From Anderson v. Sterrit, 95 Kan. 483, 148 P. 635, 636, we quote: "The plaintiff had no license to ride his bicycle and carried no light, contrary to an ordinance of the city. The absence of a license was not a factor causing the collision, and the defendant testified that he saw the plaintiff when he was a long distance from the point of collision. Consequently, neither violation of the city ordinance contributed to the plaintiff's injury."

From Surmeian v. Simons, 42 R.I. 334, 107 A. 229, we quote: "It appears that at about 10 o'clock on the night of August 14, 1917, the plaintiff was driving a two-seated carriage upon Elmwood avenue in the town of Warwick; that he was proceeding toward the north, and was upon the extreme easterly side of the traveled part of the road; that when he had reached a point near the intersection of Pawtuxet avenue with Elmwood avenue, about one-third of a mile south of the bridge over which Elmwood avenue crosses the Pawtuxet river, his carriage was struck from behind without warning by an automobile operated by the defendant, who at that time was also proceeding northward on Elmwood avenue. As a result of this collision, the carriage of the plaintiff was injured, his horse was caused to run away, and the plaintiff claims that he received personal injuries. *** Said night was warm, the weather was fair, but the moon was not shining. This part of Elmwood avenue is in a suburban district and is lighted by incandescent electric lights. There is a conflict in the evidence as to the distance between said lights and as to the extent to which said lights illuminated the road on the night in question. The defendant claims that the plaintiff was guilty of contributory negligence, in that at the time of the...