Martin v. Oregon Stages, Inc.

• Decision Date: 30 April 1929
• Citation: 129 Or. 435,277 P. 291
• Parties: MARTIN v. OREGON STAGES, INC. [*]
• Court: Oregon Supreme Court

277 P. 291

129 Or. 435

MARTIN v. OREGON STAGES, INC. ^[*]

Supreme Court of Oregon

April 30, 1929

In Bank.

Appeal from Circuit Court, Multnomah County; George Rossman, Judge.

Action by Frank V. Martin against the Oregon Stages, Inc. Judgment for plaintiff, and defendant appeals. Reversed and remanded with instructions.

Plaintiff brought this action against defendant to recover damages for personal injuries. Plaintiff sued for $75,000 general damages and $2,202 special damages. The injuries were received in a collision between a truck, upon which plaintiff was trying to adjust a light, and a passenger stage owned by defendant. The collision occurred on the Pacific Highway, a short distance south of Knight's Rest. After starting the truck from Knight's Rest, where plaintiff had eaten, he discovered the fog light was loose and waving to and fro so as to cast its rays athwart the highway. He stopped the truck to adjust the light, after having driven it as far off the highway as he safely could. The night was dark; it was raining; and there was considerable traffic at the place and time. Plaintiff testified that the left wheels of the truck were on the highway about 2 feet and the body extended a foot farther from the right border of the paved portion. At that place the paved part of the highway is 16 feet wide. Plaintiff alleges negligence on the part of defendant in the following particulars:

"(a) Driving at an unlawful rate of speed, to-wit: Thirty-five miles an hour.

"(b) Driving at a reckless rate of speed with respect to the character and condition of the place where the accident occurred.

"(c) Failure to have the stage under control.

"(d) Failure to keep a proper lookout.

"(e) That the stage was not equipped with a windshield wiper, or any other device for keeping the windshield clean.

"(f) Failure to sound an alarm."

Defendant answered denying the material parts of the complaint, and charged contributory negligence in the following particulars:

"(a) Plaintiff parked his truck on the main traveled portion of the Pacific Highway at a time when the truck was not disabled in any manner so that it could not be operated under its own power, and at a point where there was ample room to the right of the paved portion of the highway for him to park his truck;

"(b) The truck driven by plaintiff was not equipped with a red light or any other light to give warning to the defendant;

"(c) The truck was more than six feet in width and was not equipped with a white light on the left side thereof;

"(d) The truck carried a load of pipe which projected more than three feet over the rear thereof and no light was displayed at the rear of the overhanging load;

"(e) The plaintiff failed to provide any means of warning to traffic approaching his truck from the rear."

The trial resulted in a verdict in favor of plaintiff for the full amount demanded, viz. $77,202. A motion for a new trial was filed and denied. Judgment was entered upon the verdict from which defendant appeals. The errors assigned by defendant on the appeal are: First, the court's refusal to direct a verdict in favor of defendant because the evidence conclusively shows plaintiff to be guilty of contributory negligence, viz.: (a) He parked his truck on the main-traveled portion of the highway; (b) his truck was not equipped with lights as required by law. Second, erroneous admission of evidence. Third, giving of certain instructions claimed to be prejudicial to defendant. Fourth, refusal to give certain instructions requested by defendant. Fifth denial of defendant's motion for a new trial. Sixth denial of its motions for a nonsuit and a directed verdict. These motions were based on the claim that plaintiff violated the law by parking his truck on the main-traveled portion of the highway and not equipping said truck with lights as required by law.

Hall S Lusk, of Portland (B. P. Gibbs, of Los Angeles, Cal., and Emmons, Lusk & Bynon, of Portland, on the brief), for appellant.

Frank J. Lonergan and Lars R. Bergsvik, both of Portland (Lonergan & Wagner, Lars R. Bergsvik, and Neal R. Crounse, all of Portland, on the brief), for respondent.

COSHOW, C.J. (after stating the facts as above).

We are saved the trouble of searching the record for the purpose of determining whether or not defendant was guilty of negligence. Defendant concedes that there is sufficient evidence of its negligence to take the case to the jury.

Defendant insists, however, that plaintiff was guilty of contributory negligence as a matter of law. This argument is based upon the contention that plaintiff parked his truck on the main-traveled portion of the highway. One who parks a motor vehicle on the maintraveled portion of the highway without necessity therefor is guilty of negligence. Townsend v. Jaloff, 124 Or. 644, 264 P. 349; Watt v. Associated Oil Co., 123 Or. 50, 260 P. 1012; O'Brien v. Royce, 111 Or. 488, 227 P. 520; Dare v. Boss, 111 Or. 190, 224 P. 646. Whether or not plaintiff parked his truck on the main-traveled portion of the highway determines the charge of negligence under consideration. If plaintiff parked his truck as asserted by defendant, he is guilty of negligence as a matter of law and cannot recover. There could hardly he a difference of opinion regarding such negligence contributing to plaintiff's injury.

The word "park" as used in the statute has not been accurately defined. It cannot be percisely defined so as to apply the meaning of the Legislature to all cases. Whether or not a motor vehicle standing in the roadway is parked must be determined from all of the surrounding circumstances and the reason for the vehicle standing. The statute in force at the time of the collision in the instant case reads as follows: "No vehicle shall be parked upon the main-traveled portion of the highways of this state; provided, that this shall not apply to any vehicle so disabled as to prohibit the moving of the same." Gen. L. 1921, p. 712, chap. 371, § 2, subd. 19.

The proviso cannot be applied in all cases literally. The words "so disabled as to prohibit" do not necessarily indicate that the vehicle could not be moved, but that it would be unsafe to move it under the conditions existing at the place and time. To illustrate: An automobile was moving along the highway along the side of a mountain. The highway at that place was a mere shelf, 20 to 24 feet wide, with a precipitous mountain on one side and a perpendicular bank on the other; the road was from 50 to 75 feet above the river which flowed at the foot of the mountain. The highway was not straight, but curved in and out with the contour of the mountain. Suddenly the lights of the automobile were extinguished for some cause. The automobile was not otherwise impaired. It was not so disabled but what it could move with its own power, yet it was absolutely unsafe to do so. It would have been unsafe to have moved, not only for the occupants, but for other travelers along the highway. It dared not move to the right of the road because of the precipitous bank between the road and the river. No one would say that the automobile under those conditions was not so disabled as to prohibit the moving of the same, notwithstanding it could have moved on its own power without difficulty; consequently we cannot apply said section 2, subd. 19, above, literally. The language must be so employed as to give effect to the legislative intent. In other words, the language must be construed in a reasonable way.

This court has ruled on the meaning of the word "park" and its relation to questions of fact and questions of law in Dare v. Boss, 111 Or. 190, 197, 224 P. 646. This court wrote through Mr. Justice McBride:

"We find no definition in the statute of the word 'park,' but we take it that it means something more than a mere temporary or momentary stoppage on the road for a necessary purpose. Neither do we understand this statute to require a person to incur any chances of any serious injury by removal of a disabled car; but in such case, if the testimony indicates that such removal would incur danger to the person occupying the car, there is no hard and fast rule requiring him to take such chances. * * * We do not think, as a matter of law, the court could say to the jury that the plaintiff was guilty of contributory negligence, but properly left it to the jury to find on this subject."

Dare v. Boss, above, has been cited with approval in later cases. O'Brien v. Royce, 111 Or. 488, 497, 227 P. 520; Townsend v. Jaloff, 124 Or. 644, 648, et seq., 264 P. 349. In Watt v. Associated Oil Co., 123 Or. 50, 54, et seq., 260 P. 1012, 1013, Mr. Justice McBride, speaking for the court again, used the following language:

"The testimony here is conflicting, but as the jury is made by law the judge of the value and effect of evidence, we have no right to set aside the verdict unless there was a total lack on the part of plaintiff to introduce any substantial evidence to sustain her contentions. * * *

"* * * But conceding that the pleading is sufficient, the jury was the judge as to whether the truck was actually stopped for the purpose indicated in Kumler's testimony, and, if so, the jury was still the judge as to whether there was such an emergency as to justify such stoppage at that place; and, under the surrounding circumstances, the defendant Kumler was the best judge as to this."

From these authorities we hold that this court is committed to the rule that the jury is the judge of the question as to whether or not the truck driven by plaintiff was actually parked in the technical sense of that word as used in our statute. If the truck was standing partially on the traveled portion of the highway because of a necessity for some...