Lynch v. Clark et al.

• Citation: 194 P.2d 416,183 Or. 431
• Parties: LYNCH, AS ADMINISTRATOR, <I>v.</I> CLARK ET AL.
• Decision Date: 25 May 1948
• Court: Supreme Court of Oregon

183 Or. 431

194 P.2d 416

LYNCH, AS ADMINISTRATOR,v.

CLARK ET AL.

Supreme Court of Oregon.

Argued April 21, 1948.

Affirmed May 25, 1948.

Automobiles — Death — Pedestrian — Burden of proof — Contributory negligence

1. In action wor death of pedestrian who was struck by taxicab at night while crossing street, burden of proving contributory negligence was on defendants.

Automobiles — Evidence — Insufficient — Contributory negligence

2. In action for death of pedestrian who was struck by taxicab at night while he was crossing street, evidence was insufficient to establish that pedestrian was contributorily negligent.

Automobiles — Pedestrian — Right of way — Crosswalk — Material distance

3. If pedestrian, who was struck by taxicab, was on crosswalk when he was struck, he was entitled to the right of way over the taxicab; but, if pedestrian was a material distance away from crosswalk while attempting to cross the street, driver of taxicab would have the right of way.

Automobiles — Not having right of way — Negligence — Care

4. One not having right of way is not guilty of negligence merely because of that fact, if he exercises the care required of a person in that situation.

Automobiles — Pedestrian — Reasonable person — Cross in safety — Proceed

5. When a pedestrian, who is about to cross a street or highway, sees an automobile approaching at such a distance from him that would lead a reasonable person to believe that he can cross in safety, he has a right to proceed without waiting for the automobile to pass, and is not guilty of contributory negligence in so doing.

Automobiles — Pedestrian — Right of way — Outside pedestrian crossing

6. A pedestrian is entitled to right of way over automobile, though pedestrian is not exactly within the pedestrian crossing, but a few feet outside the boundary line.

Automobiles — Jury — Contributorily negligent

7. Generally, it is a question for jury to determine whether a pedestrian who is struck by an automobile at or near a regular street crossing was contributorily negligent.

Automobiles — Mere intoxication — Pedestrian — Insufficient — Jury — Contributory negligence

8. Mere intoxication of a pedestrian, in absence of any evidence of conduct on part of pedestrian, in an action against a motorist for death of pedestrian, is insufficient to take to jury an issue of contributory negligence proximately contributing to the accident.

Automobiles — Death — Blood test — Insufficient — Jury — Contributory negligence

9. In action for death of pedestrian who was struck by taxicab at night while he was crossing street, proffered testimony of doctor, that a blood test made of blood taken from deceased's body after his death indicated that pedestrian was intoxicated, was properly rejected as insufficient to present a jury question of contributory negligence in absence of any other evidence tending to show contributory negligence.

Trial — Mistrial — Discretion

10. In action for death of pedestrian who was struck by taxicab at night when he was crossing street, wherein objection was sustained to question by counsel for plaintiff on cross-examination of driver whether driver was in the habit of drinking some intoxicating liquor, denial of defendants' motion for mistrial when plaintiff's counsel thereafter asked driver if he ever had a drink of intoxicating liquor was not an abuse of discretion, where defendant answered none of the questions concerning his previous habits.

                  See 42 C.J., Motor Vehicles § 784
                  113 A.L.R. 528
                  5 Am. Jur. 608
                

Appeal from Circuit Court, Marion County.

E.M. PAGE, Judge.

James J. Kennedy, of Portland, argued the cause for appellants. With him on the brief were Maguire, Shields & Morrison, of Portland, and Norman K. Winslow, of Salem.

R.W. Skopil and Allan G. Carson, of Salem, argued the cause for respondent. With them on the brief was Wallace P. Carson, of Salem.

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

Action by John Lynch, as administrator of the estate of Victor F. Lynch, deceased, against the defendants Clark to recover damages on account of alleged negligence in the operation of a motor vehicle which resulted in the death of the decedent. From a verdict and judgment in favor of the plaintiff, the defendants appeal.

AFFIRMED.

BRAND, J.

The defendants, R.A. Clark and Robert Lynn Clark are partners doing business as the "Salem Taxi Service". The defendant, Gordon L. Clark, was on the 15th day of December, 1945, the driver of the defendants' taxi. On the evening of that day, the defendants' automobile collided with the decedent, causing the injuries from which he died. The collision occurred in a business district of the city of Salem, at the intersection of Front and Court streets. Front street extends in a general northerly and southerly direction and Court street in a general easterly and westerly direction. The defendant, Gordon Clark, was operating the vehicle in a southerly direction on Front street. The collision caused the immediate death of the decedent who left neither a widow nor any dependents surviving him. The plaintiff was duly appointed administrator of the estate of the decedent and brings the action for the benefit of the said estate.

It is alleged that the defendant driver of the taxicab negligently struck the decedent resulting in his mortal injuries. There was evidence of the defendant's negligence in particulars specified in the complaint, sufficient to take the case to the jury. The defendants deny the alleged negligence and allege that the decedent was guilty of contributory negligence in failing to keep a proper lookout; in crossing Front street at a place other than a marked or unmarked crosswalk; in failing to yield the right of way to defendants' taxicab, and in leaving a place of safety and in walking immediately in front of defendants' taxicab. It is asserted that the alleged negligence of the decedent proximately caused the collision and the injuries which resulted in his death.

After the case was put at issue upon the pleadings, the plaintiff moved the court for an order suppressing certain evidence and supported the motion by an affidavit of counsel for the plaintiff. The affidavit stated in substance that on the 15th day of December, 1945, after the death of the decedent, the deputy coroner, acting as such, without knowledge or consent of anyone, extracted from the body of the decedent a sample of blood, and that the blood was analyzed and that it was claimed by the attorney for defendants that the analysis of the blood was such as to evidence a state of intoxication on the part of the decedent at the time he was struck by the defendants' taxicab. It is the contention of the plaintiff that the extraction of blood from the decedent for the purpose of testing its alcoholic content constituted an unlawful search or seizure in violation of constitutional mandate. The court allowed the motion and suppressed the evidence concerning the extraction of the sample of blood and the analysis thereof. At the trial of the cause the defendants made an offer of proof to the effect that a sample of blood was taken and that upon analysis it was found to contain 18/100 grams of alcohol per 100 CCs of blood, indicating a state of intoxication which would impair judgment. This offer of proof was rejected by the trial court. The first question for determination is whether the trial court erred in suppressing the evidence and in rejecting the offer of proof. If there was other evidence in the record tending to prove that the decedent was negligent and that such negligent conduct on his part proximately contributed to his own injury, then it is clear upon the authorities that the defendant would be entitled to show by proper evidence that the decedent was intoxicated at the time and the jury would be entitled to consider the evidence of intoxication in connection with all of the other evidence of the case in determining whether or not the decedent was guilty of contributory negligence. Under those conditions the admissibility of the suppressed evidence would be directly before us for decision.

We will first review the evidence which was received by the trial court for the purpose of determining whether it tends to show contributory negligence. As stated in the appellants' opening brief, the accident occurred in or near the intersection of Front and Court streets. Court street is approximately 71 feet wide and Front street is approximately 59 feet wide at the intersection. At the time of the accident, which occurred at about 8:45 P.M., the weather was cold and the pavement dry. The defendant Gordon Clark testified that he was driving south on Front street toward the intersection with Court street, at approximately 20 miles per hour, with dimmed lights. Concerning the events at the intersection, the defendant testified as follows:

"Q. And as you approached the intersection of Court Street there, did you see Victor Lynch in the street?

"A. No, sir.

"Q. What was the first that you knew of when the collision occurred?

"A. I was under the impression that I had hit a board or a box in the street. I didn't have any idea it was a man.

"Q. Well, you didn't see him then?

"A. No, sir.

"Q. Prior to the time he was struck?

"A. No, sir."

Upon cross-examination, he testified:

"Q. You were under the impression that you hit a board, is that correct?

"A. Well, some sort of an object.

"Q. Well, you told the jury you were under the impression you hit a board or a box or something like that?

"A. Yes, sir.

"Q. Did you ever have something like that come up to the windshield in front of you?

"A. I have never had anything like that happen to me.

"Q. What gave you the impression that it was a board or a box?

"A. Because I couldn't figure that it could be a man, because I didn't see the man at all.

"Q. You saw him when he came up in front of the windshield didn't you?

"A. Well,...