Loibl v. Niemi

• Decision Date: 09 July 1958
• Citation: 327 P.2d 786,214 Or. 172
• Parties: Emma LOIBL, Administratrix of the Estate of Winfield Harold Loibl, deceased, Respondent, v. William NIEMI, Appellant.
• Court: Oregon Supreme Court

Page 786

327 P.2d 786

214 Or. 172

Emma LOIBL, Administratrix of the Estate of Winfield Harold Loibl, deceased, Respondent, v. William NIEMI, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted March 13, 1958.

Decided July 9, 1958.

Duane Vergeer, Portland (Vergeer & Samuels and Charles S. Crookham, Portland, on the brief), for appellant.

Elliott B. Cummins, McMinnville (Nott, Cummins and Devlin, McMinnville, on the brief), for respondent.

Before PERRY, C. J., and ROSSMAN, WARNER and McALLISTER, JJ.

WARNER, Justice.

The defendant, Niemi, appeals from a judgment for damages for the death of W. H. Loibl as a result of a collision between his tractor and defendant's automobile. The plaintiff is the widow of Loibl and appears herein as the administratrix of her husband's estate.

The complaint alleges that on October 7, 1954, after 6:00, p. m., the defendant was driving and operating his 1950 Buick automobile northerly along the Lafayette-Hopewell road, a public highway, at a point approximately a mile and one-half north of the town of Hopewell; that at the same time and place the decedent, W. H. Loibl, was driving a 1954 International farm tractor along the same highway in the same direction; and that the defendant carelessly and negligently drove his automobile into and against the decedent's tractor with such force and violence as to cause Mr. Loibl's death.

The defendant, after a general denial, alleges as his principal defense that at the time of the collision, objects along the highway were not visible for 500 feet without artificial illumination and at the time it occurred, the decedent was operating the tractor in a careless and negligent manner such as to be the sole and proximate cause of decedent's death and in the following particulars: in operating the tractor at the time without the lighting equipment required by law; and by displaying a white light at the rear thereof.

The transcript discloses the following facts: the place of the accident was on a level stretch in the road; that the road was paved to a width of 19 feet, marked with a yellow center line, and had relatively narrow shoulders; that the highway was straight for a half mile or so north of the point of impact, and also straight for a distance of 465 feet south of the same point; that at this distance south, a gradual curve to the southeast begins; that by reason of the gradual character of the curve, there is unobstructed visibility to a driver moving northward for 715 feet before reaching the place of collision; that at the time in question, both vehicles were proceeding in a northerly direction on the right or easterly side of the highway; that decedent's tractor was some distance ahead of defendant's Buick sedan; that both drivers were alone in their respective conveyances; and there were no eye-witnesses to the accident, other than defendant. The record establishes that official sunset time that day was 5:43, p. m., Pacific Standard Time.

The time of day is a decisive element, bearing, as it does, upon the condition of the lights on both vehicles and particularly upon the want of statutory lights on decedent's tractor. The importance of the time of the accident is brought to the fore by reason of defendant's claim of decedent's contributory negligence growing out of his alleged failure to have his tractor equipped with proper lights.

There is some difference of opinion among the witnesses as to the degree of visibility prevailing at the time. Many claimed that the collision happened at twilight, that is, between the hours of daylight and darkness, and that silhouettes or outlines of objects were visible without the aid of artificial light.

The defendant's version is that he left his home about three and one-half miles from the scene of the accident about 6:15, p. m.; that he travelled at a speed variously described as 40, 45 or 50 miles per hour with his headlights on; that he was so travelling when he noticed what appeared to be a white headlight on the highway in front of him. This was noticed as he came out of a curve into the straight stretch of the highway. He claims that there were no red lights and he assumed that the object ahead in the road bearing the white light was either a vehicle with one headlight or a motorcycle coming toward him. He says he was approximately 50 or 75 feet from the light when he realized that he was mistaken in the object and applied his brakes, but not in time to avoid collision between his car and decedent's tractor.

Defendant's first assignment charges that the court erred in denying his motion for a directed verdict after the parties had rested.

The cardinal question projected by this assignment of error is whether decedent's violation of the statutory requirements relative to lighting devices on his tractor was negligence as a matter of law contributing to his injury.

It is defendant's position that the uncontradicted evidence shows that Mr. Loibl immediately before the collision was operating his vehicle upon the highway during hours and under conditions when lights were required on motor vehicles and did so without having the lighting equipment required by statute.

Defendant makes this the basis of his motion for a directed verdict, arguing that such a situation warrants a conclusion that the plaintiff's violation of these lighting directions renders him negligent per se; that such negligence was the proximate cause of his death and, therefore, the court should have held that Loibl was contributorily negligent as a matter of law. Such is the nub of defendant's argument.

The question whether plaintiff has been guilty of contributory negligence as a matter of law is generally one for the jury and 'becomes a question of law when, and only when, from the facts, reasonable men can draw but one inference and that inference points unerringly to the negligence of plaintiff contributing to the injury. In all other cases the question of contributory negligence is one of fact for the jury.' Martin v. Harrison, 182 Or. 121, 137, 180 P.2d 119, 186 P.2d 534, 537; Clark v. Strain, Or., 319 P.2d 940, 941, and cases there cited.

Moreover, on a motion for a directed verdict, the evidence must be viewed in a light most favorable to the plaintiff. Martin v. Harrison, supra; Edvalson v. Swick, 190 Or. 473, 480, 227 P.2d 183; Clark v. Strain, supra.

Thus, it is obvious that the first phase of such a determination calls for an examination of testimony touching upon the existence of conditions at or prior to the collision stipulated by ORS 483.402, requiring the use of light on his vehicle. It follows that if there was no duty to illuminate the lighting devices at a given time, the presence or absence of the items of equipment required by the motor code becomes a matter of secondary or no importance, even though it be found that the Loibl tractor was wanting in the lighting equipment required by law. Where the act claimed to constitute negligence was merely failure to perform a legal duty, causation is established only when the doing of the act would have prevented the resulting accident. Eklof v. Waterston, 132 Or. 479, 487, 285 P. 201, 68 A.L.R. 1002; Staples v. Senders, 164 Or. 244, 255, 96 P.2d 215, 101 P.2d 232; Leap v. Royce, 203 Or. 566, 573, 279 P.2d 887.

It is this posture of the case which gives much importance to the element of the time of Mr. Loibl's death and the conditions of visibility prevailing at and immediately before defendant's automobile collided with decedent's tractor.

Before its amendment in 1957, and as it was at the time of the accident, ORS 483.402 read, as far as pertinent:

'(1) Every vehicle upon a highway within this state at any time from a half-hour after sunset to a half-hour before sunrise and at any other time when, there is not sufficient light to render persons and vehicles clearly discernible on such highway at a distance of 500 feet ahead, shall display lighted lamps and illuminating devices as specified in ORS 483.402 to 483.442, subject to the specific exceptions with respect to parked vehicles.'

Thus, the decedent was mandated to have the required illuminating devices on his tractor lighted at 6:13, p. m., on the day of the accident, or before that time, if there was not sufficient light to render persons or vehicles clearly discernible on the highway at a distance of 500 feet ahead.

The evidence does, indeed, present close questions, both as to the time of the collision and the condition of visibility prevailing at that time and immediately before it occurred. This is due, in part, to the absence of any living eyewitnesses, except the defendant. The testimony of all other witnesses, there being approximately eight in number, comes, in the main, from neighbors of decedent living reasonably close to the scene of the accident and who quickly gathered on hearing the crash or who drove up to the point of collision shortly afterward. No witness undertook to give the exact hour or minute of the accident but by testing their estimates against testimony of other and substantially contemporaneous events which were established with a greater degree of certainty, the jury might well have inferred that it happened close to, but shortly before, 6:13, p. m. Although there is not an accord between them, either as to the time or condition of visibility, there is, nevertheless, sufficient substantial evidence to have warranted submitting these issues to the jury for its determination, as the court properly did.

Certainly, the lower court, in the state of the record, could not say from the facts that reasonable men could draw but one inference therefrom and that inference unerringly pointed to the negligence of the plaintiff as the contributing cause of his injury. Martin v. Harrison, supra.

Defendant for his second assignment of error urges that the court erred in permitting evidence of two witnesses who testified that on the day following...