LaVigne v. Portland Traction Co.

• Decision Date: 02 July 1946
• Citation: 179 Or. 221,170 P.2d 709
• Parties: LAVIGNE <I>v.</I> PORTLAND TRACTION CO.
• Court: Oregon Supreme Court

179 Or. 221

170 P.2d 709

LAVIGNEv.

PORTLAND TRACTION CO.

Supreme Court of Oregon.

Argued March 6, 1946.

Affirmed July 2, 1946.

Street railroads — Evidence of negligence

1. In action by automobile guest against owner of trolley bus for injuries sustained in collision between automobile and bus when automobile crossed over onto its left side of street, and bus driver, to avoid collision, drove onto his left side of street, and automobile then crossed over to its right side of the street and struck bus at an angle of 45 degrees, evidence that bus driver was negligent in not stopping the bus to avoid the collision instead of driving onto his left side of the street was insufficient for jury.

Street railroads — Automobiles

2. In action by automobile guest against owner of trolley bus for injuries sustained in collision between automobile and bus when automobile crossed over onto its left side of street, and bus driver, to avoid collision, drove onto his left side of street, and automobile then crossed over to its right side of the street and struck bus at an angle of 45 degrees, statutes requiring the operation of vehicles on the right-hand side of the highway have no application.

Trial — Nonsuit

3. Trial court did not lose its power to make order allowing defendant's motion for an involuntary nonsuit because of the fact that before the motion was made defendant had introduced a map in evidence.

Trial — Nonsuit

4. Where plaintiff failed to prove a case sufficient for jury, allowance of motion for involuntary nonsuit instead of ordering a directed verdict did not prejudice plaintiff.

                  See 60 C.J., Street railroads, § 316
                

Appeal from Circuit Court, Multnomah County.

LOUIS P. HEWITT, Judge.

John F. Conway, of Portland (with Henry G. Kreis, of Portland, on brief), for appellant.

John J. Coughlin, of Portland (with Griffith, Peck, Phillips & Nelson, of Portland, on brief), for respondent.

Before BELT, Chief Justice, and ROSSMAN, KELLY, BAILEY, LUSK and BRAND, Justices.

AFFIRMED.

LUSK, J.

This appeal is taken by the plaintiff from a judgment of involuntary nonsuit in an action to recover damages for personal injuries based on negligence. Two other cases arising out of the same accident have been passed on by this court. Holzhauser v. Portland Traction Co., 178 Or. 607, 169 P. (2d) 127; LaVigne v. LaVigne, 176 Or. 634, 158 P. (2d) 557. Neither of those decisions controls the judgment in this case.

Plaintiff, while a guest passenger in an automobile driven by his nephew, William L. LaVigne, was injured when the automobile collided with a trolley bus of the defendant corporation.

According to the complaint the LaVigne automobile was being driven in a northwesterly direction along North Greeley Avenue in the City of Portland, and was a short distance from the intersection of that thoroughfare with North Alberta Street "when a large trackless trolley bus, then owned and operated by said defendant, and which was then traveling in a general southeasterly direction along and upon said North Greeley Street, and then on its wrong side of said street and in its wrong lane of traffic, did thereupon collide with * * * said automobile * * *"

Plaintiff alleged that defendant was negligent in operating its trolley bus on the wrong side of North Greeley Avenue and in the wrong lane of traffic thereof; in failing to keep the bus under proper control; and in operating the bus at a high and dangerous rate of speed.

The accident occurred on the afternoon of January 18, 1943. The plaintiff, as a witness, testified that he was in the back seat of the LaVigne automobile; his brother was also in the back seat; and his brother's wife was in the front seat with her son, William LaVigne, who was driving. The speed of the car was not over twenty-five miles an hour. The witness did not see the trolley bus and had no recollection of the accident, in which he sustained serious injuries.

The only other witness for the plaintiff (apart from those who testified on the subject of his injuries) was Carl E. Anderson, the operator of the trolley bus. The substance of his testimony was that on the afternoon in question he was operating the bus south on North Greeley Avenue at a speed of about twenty miles an hour. North Greeley Avenue is twenty-eight feet wide. The day was clear and dry. As he neared North Alberta Street he saw a string of cars approaching from the south with the LaVigne car in the lead. When the LaVigne car was about 100 or 120 feet from the bus it swung to its left to within two feet of the west side of North Greeley Avenue, whereupon the witness applied the brakes of the bus and pulled over to his own left into the east half of the highway. But the LaVigne car then swung back to its right, and, without slackening its speed, came towards the bus at an angle of forty-five degrees and ran into the bus at its left front. Immediately after the collision the bus was about forty feet north of Alberta Street.

The plaintiff contends that the bus operator should have avoided the collision because, it is claimed, the evidence shows that he saw the LaVigne car start to cross the yellow line, which marks the center of the street, when the car was several blocks away from the bus. That is to say, as we understand the argument, the LaVigne car, instead of being 100 to 120 feet distant when it swung to the left, as Anderson testified, was actually several hundred feet away from the bus, leaving ample time for Anderson to bring the bus to a stop. To support this contention, the following testimony of the witness Anderson with reference to testimony previously given by him at the trial of another case arising out of the same accident is called to our attention:

"Q Did you at the time of this trial testify to this effect (reading):

* * *

`Q Mr. Anderson, was the LaVigne car across the center line when you first noticed it?

`A Well, no, not quite.

`Q It was just starting to cross?

`A Starting.

`Q You mentioned the fact that the trolley poles on the bus gave you a range of twenty-eight feet on both sides, so it would be fourteen feet on each side?

`A Yes, sir.'

"Now, what is your best recollection of where the LaVigne car was with respect to the center line when you first noticed it coming around the curve there?

"MR. NELSON: That is already testified to. He has already testified to that.

"MR. SIMS: Q Did you testify in the former trial that it was starting across the center line? Did you testify to that in the former trial?

"A I don't remember that.

"Q I will show you this (counsel approaching the witness). ...