Lane v. Stewart

• Jurisdiction: Oregon
• Parties: Ebert S. LANE, Appellant, v. Vern STEWART and Esther Stewart, Respondents.
• Citation: Lane v. Stewart, 351 P.2d 73, 221 Or. 293 (Or. 1960)
• Court: Oregon Supreme Court
• Decision Date: 13 April 1960

Page 73

351 P.2d 73

221 Or. 293

Ebert S. LANE, Appellant, v. Vern STEWART and Esther Stewart, Respondents.

Supreme Court of Oregon, Department 1.

Argued March 16, 1960.

Decided April 13, 1960.

Thomas H. Tongue, Portland, argued the cause for appellant. On the briefs were Bernau & Wilson, Roseburg, and Hicks, Davis, Tongue & Dale, Portland.

Paul E. Geddes, Roseburg, argued the cause for respondents. On the brief were Geddes, Felker, Walton & Richmond, Roseburg.

Before McALLISTER, C. J., and SLOAN, O'CONNELL and HARRIS, JJ.

HARRIS, Justice pro tem.

This is an action by plaintiff, Ebert S. Lane, against the defendants, Vern Stewart and Esther Stewart, for personal injuries. Subsequent to verdict and judgment in favor of the plaintiff, defendants moved for a new trial. From an order sustaining defendants' motion for new trial, plaintiff appeals.

On September 6, 1956, plaintiff was operating a truck-tractor in a southerly direction on highway 101 at a point approximately 13 miles north of the city of Florence, Oregon. Plaintiff was approaching a sharp left-hand curve in said highway. Defendant Vern Stewart was at said time and place operating an Oldsmobile sedan in a southerly direction behind plaintiff's vehicle. Plaintiff claims that as the two vehicles were approaching the curve, defendant Vern Stewart (hereinafter referred to as defendant) pulled into the left-hand lane of the highway and passed plaintiff's vehicle; that defendant's vehicle thereupon was abruptly decelerated and went into a skid in front of plaintiff's vehicle and swerved and zigzagged from side to side immediately in front of plaintiff's vehicle; that to avoid colliding with defendant's vehicle plaintiff was forced to veer his truck sharply to his left, causing it to turn over, inflicting on him the injuries complained of.

Plaintiff alleged defendant was negligent in the following six particulars:

'(a) Negligently and carelessly operated said Oldsmobile car at a rate of speed which was high and dangerous under the circumstances and conditions then existing.

'(b) Negligently and carelessly failed to have said Oldsmobile car under control or under such control that it could be readily stopped, turned aside or the speed thereof slackened on the appearance of danger.

'(c) Negligently and carelessly drove to the left side of the center line of said highway in overtaking and attempting to pass plaintiff's said truck when such overtaking and passing could not be completely made without impeding the safe operation of plaintiff's said vehicle.

'(d) Negligently and carelessly drove to the left side of the center line of said highway when upon a curve on said highway when the said driver's view along said highway was obstructed within a distance of 500 feet.

'(e) Negligently and carelessly overtook and attempted to pass the plaintiff's said truck when such movement could not be made in safety.

'(f) Negligently and carelessly overtook and passed plaintiff's said truck and drove again to the right side of the highway at a time when defendants' said Oldsmobile car was not safely clear of plaintiff's said truck.'

The grounds of defendant's motion for a new trial are summarized as follows:

'(a) Failure to withdraw specification (a), charging excessive speed, for alleged lack of evidence.

'(b) Failure to withdraw specification (c), charging defendant with attempting to pass when he could not do so without impeding the safe operation of plaintiff's truck, both for alleged lack of evidence and for alleged lack of proximate causation.

'(c) Failure to withdraw specification (d), charging defendant with passing within 500 feet of a curve, for the same alleged reasons.

'(d) Failure to withdraw specification (e), charging defendant with attempting to pass when he could not do so in safety, for alleged lack of evidence.

'(e) (f) (g) (h) Submission to the jury of the foregoing specifications, for alleged lack of evidence and for alleged lack of proximate causation.

'(i) That the verdict was allegedly excessive and was given under the alleged influence of passion and prejudice.'

The question for decision is whether the court properly granted defendant's motion for a new trial upon any of the grounds set forth in the motion for new trial. If any of the grounds set forth in the motion is tenable, this court must sustain the order granting the new trial. If none of the grounds can be sustained, the judgment based on the verdict of the jury must be reinstated. Zeek v. Bicknell, 159 Or. 167, 169, 78 P.2d 620.

Because of the unusual nature of the accident in question, it will be necessary for us to give a somewhat detailed statement of the facts.

The accident took place on a sharp hairpin curve on a bluff overlooking the Pacific Ocean on the Oregon Coast highway. Approaching from the north this curve was located at the base of a descending grade, down which there was a straight stretch of highway with visibility of from 750 to 900 feet.

Warning of the curve was given by three highway signs. The first sign, 'Sharp curve ahead,' was located at the top of the hill and at the start of the curve at the northerly end of the straight stretch. The second, a 'Slow' sign, was located partly down the straight stretch. The third, a usual curve sign with a right-angled arrow and '25 m. p. h.,' was located about midway on the straight stretch.

At the point of the accident the paved portion of the highway was 23 feet wide with a guard rail at the edge overlooking the bluff.

Plaintiff, a truck driver of 31 years' experience, was operating an International truck or a tractor with dual rear axles, hauling a 'low boy' trailer also equipped with dual rear axles, loaded with a 'cat.' With its load the outfit weighed about 32 tons, was 44 feet long and was preceded by a flagman in another vehicle to warn oncoming traffic.

The truck had brakes on its rear wheels but not on the front wheels. The trailer also had air brakes connected to a pressure tank holding 120 pounds of pressure.

Plaintiff testified that after he would step hard on the trailer brakes it took a second or two for the air pressure to build up again, with the result that when within such time, it was necessary for him to step on the trailer brakes again, they did not at once skid the wheels, although they would slow down the vehicle. There was no evidence that the brakes were out of repair.

Plaintiff testified that while he was proceeding down-grade at about 20 miles per hour against the compression of his engine, the defendant proceeded to pass him when he was about half way down the straight stretch. At this time plaintiff claimed to be 'fanning' the brakes of his trailer. Plaintiff testified the point where defendant started to pass him was beyond the 'slow' sign and at the point of the 'curve' sign.

Plaintiff further testified defendant then cut sharply in front of him and jammed on his brakes directly in front of plaintiff's outfit at the beginning of the sharp curve mentioned. Plaintiff stated defendant then 'rolled away' for a moment in front of his truck and then when about 15 to 25 feet out in front, started to zigzag and weave across the road, causing defendant to slow down again in front of the truck.

Plaintiff swore that when defendant cut in front of him, plaintiff set the trailer brakes, slowing the truck to a speed of from 10 to 20 miles per hour. According to plaintiff, he turned his truck at that point to the right and into the gravel shoulder to avoid hitting the defendant. Plaintiff further stated that when defendant then started to 'roll away' he assumed everything was alright and released the trailer brakes. Plaintiff testified that when defendant's car then started to zigzag across the road in the turn and again slowed down in front of his vehicle it was necessary for plaintiff, who was then operating on the gravel shoulder, to then put on his trailer brakes. Since he had just before been caused to set these brakes, they did not at once 'skid' the wheels but required an interval of a second or two for the pressure to again build up to that point, although the brakes were slowing up the vehicle. To avoid striking defendant's car, which plaintiff claims was zigzagging out of control 15 to 20 feet in front of the plaintiff, he tried to turn the truck to the left and reach an 'open spot.' In doing so, the truck turned over against a guard rail, pinning plaintiff in the wreckage and causing the injuries for which this action is brought. Defendant, whose car was still out of control, then hit the guard rail on the right side of the curve, bounced back on the highway and proceeded on without stopping.

There is evidence that in passing the plaintiff, defendant was traveling 40 miles per hour.

While there was some dispute in the testimony, we are compelled after verdict to resolve this matter in favor of the plaintiff.

It is the position of the defendant that any alleged act of negligence on his part in passing the plaintiff's truck could not have been a proximate cause of the accident, because the evidence indicates that the passing was completed safely and successfully. In particular, defendant relies on the following testimony given by plaintiff:

'Q. And, as soon as they started to pass, they cut in front of you very quickly, according to your story. A. Yes.

'Q. And put on the brakes. A. Yes.

'Q. And you immediately applied your brakes. A. Yes.

'Q. And you were able to control your vehicle at that time, weren't you? A. That's right.

'Q. And you didn't hit them. A. No.

'Q. And then they started to roll away from you. A. That's right.

'Q. As soon as they started to roll away from you, then you started to let your truck go. A. That's right.

'Q. And they weren't very far away from you when, according to your story, you let your truck go, were they? A. No, but they were gaining on me.'

Defendant also relies on the following statement of the plaintiff which refers to defendant's...