Manning v. Helbock

• Decision Date: 20 January 1931
• Citation: Manning v. Helbock, 135 Or. 262, 295 P. 207 (Or. 1931)
• Parties: MANNING v. HELBOCK ET AL. [a1]
• Court: Oregon Supreme Court

295 P. 207

135 Or. 262

MANNING v. HELBOCK ET AL. ^[a1]

Supreme Court of Oregon

January 20, 1931

Department 2.

Appeal from Circuit Court, Multnomah County; D. R. Parker, Judge.

Action by Raymond L. Manning, administrator of the estate of Lewis H. Manning, deceased, against Frederick G. Helbock and others. From an adverse judgment, the plaintiff appeals.

Reversed and remanded for new trial.

Robert W. Shepherd, Jr., of Portland (Marvin K. Holland, of Portland, on the brief), for appellant.

W. H Maguire, of Portland (Dey, Hampson & Nelson and Clarence J Young, all of Portland, on the brief), for respondents.

BELT J.

This is an action by the administrator of the estate of Lewis H Manning, deceased, to recover damages on account of death resulting from an automobile accident. The decedent was struck by an automobile driven by the defendant Helbock as he was crossing the intersection of Fourth street and Taylor street in the city of Portland, Or., about 7 o'clock in the evening of March 3, 1928. The streets intersect at right angles. It is alleged that the decedent was walking in a northerly direction on the west side of Fourth street, and that while he was crossing Taylor street within the regular pedestrian crossing he was struck by the automobile of the defendant, who was traveling west on Taylor street. The specific charges of negligence against the defendant, so far as material herein, were:

(a) In carelessly and negligently operating and driving said Ford automobile at a high and excessive rate of speed under the circumstances then and there prevailing, considering the wet and slippery condition of the pavement and the fact that the weather was rainy and the night dark, and the further fact that said automobile was being opperated within the congested business district of the city of Portland, Or.

(b) In carelessly and negligently operating and driving said Ford automobile at a speed in excess of 20 miles per hour within the city limits of the city of Portland, Or., and at an intersection.

(c) In carelessly and negligently failing to keep proper or any lookout for traffic, and particularly for plaintiff, as plaintiff was walking across the said Taylor street in direct continuation of the line of said sidewalk on the said Fourth street immediately prior to and at the time of said accident.

(g) In carelessly and negligently operating and driving said Ford automobile upon, against, and into collision with the said Lewis H. Manning, and in carelessly and negligently failing to avoid said accident and avoid striking the said Lewis H Manning with said automobile, and in failing to give any warning.

(h) In negligently operating and driving said Ford automobile at such a speed and in such a manner as to endanger the life and limb of other persons on the streets and highways and particularly the life and limb of the said Lewis H. Manning.

Defendant admits that Manning was struck by his automobile while crossing Taylor street, sustaining injuries which resulted in his death; but denies that the automobile came in contact with him while he was within the regular pedestrian crossing. He also denies the negligence charged and the damages alleged to have been sustained on account thereof. As an affirmative defense the defendant charges the decedent with contributory negligence as follows:

1. Said Lewis H. Manning failed to maintain any lookout for or give any heed to the approach of automobiles upon and along Taylor street and, in particular, for the automobile of defendant Frederick G. Helbock, which was then and there proceeding in a westerly direction along said Taylor street, as aforesaid.

2. Said Lewis H. Manning was then and there crossing a highway within a business district in Portland, Or., at a point other than a pedestrian crosswalk, to wit, at a point west of the regular pedestrian crosswalk or intersection, and failed to yield the right of way to the automobile of defendant Frederick G. Helbock, which was then proceeding in a westerly direction along Taylor street, as aforesaid.

3. Said Lewis H. Manning failed to exercise such increased care and diligence in giving heed to the approach of vehicles as was made necessary by the fact that he was then and there crossing Taylor street at a point west of the westerly crosswalk at the intersection of Fourth and Taylor streets.

4. Said Lewis H. Manning attempted to proceed across Taylor street directly in the path of defendant Frederick G. Heibock's approaching automobile, which was then and there close upon him.

Plaintiff in his reply denied the affirmative allegations of the answer.

The cause was submitted to the jury on the above issues, and a verdict was returned in favor of defendants. The action was dismissed as to all defendants other than the defendant Helbock, the owner and operator of the automobile. Plaintiff appeals, assigning as error the giving of certain instructions and the refusal to give other requested instructions.

Error is assigned because of the giving of the following requested instruction:

"It is alleged in plaintiff's amended complaint that decedent was walking across Taylor Street on the crosswalk. There is no claim, however, made that by reason of this circumstance, Frederick G. Helbock in the operation of his automobile violated any right of way rule at the crossing nor...