McConnell v. Herron

• Decision Date: 03 June 1965
• Citation: 240 Or. 486,402 P.2d 726
• Parties: Nora McCONNELL, Respondent, v. Dyton Dee HERRON, Grady L. Smith and Lela A. Smith, Appellants.
• Court: Oregon Supreme Court

Page 726

402 P.2d 726

240 Or. 486

Nora McCONNELL, Respondent, v. Dyton Dee HERRON, Grady L. Smith and Lela A. Smith, Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 2, 1965.

Decided June 3, 1965.

Thomas Cavanaugh, Portland, argued the cause for appellants. With him on the briefs were Vergeer & Samuels, Portland.

Lawrence N. Brown, Salem, argued the cause for respondent. With him on the brief was William Gehlen, Stayton.

Before McALLISTER, C. J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

GOODWIN, Justice.

Plaintiff was injured in a collision between the automobile in which she was a passenger and a truck owned and operated by the defendants. The defendants appeal from a judgment for the plaintiff which followed a directed verdict on the issue of negligence.

The collision occurred when the brakes of the truck failed and the truck was unable to stop at a stop light. The defendant offered to prove that prior to the accident his brakes had been working properly, and that the truck's loss of brakes was caused by forces over which the defendant had no control. This offer of proof was rejected by the trial court as irrelevant.

The rejection of the tendered defense presents two issues in this case: (1) Can there be a lawful excuse for a failure to comply with a safety-appliance statute; and (2) if an excuse is relevant, was the excuse tendered by this defendant legally sufficient?

In Nettleton v. James et al., 212 Or. 375, 319 P.2d 879 (1958), we held that a truck operator was liable as a matter of law upon a showing that his brakes were not in good working order as required by ORS 483.444. The Nettleton decision has been interpreted as placing Oregon among those jurisdictions that treat proof of a statutory traffic offense as conclusive proof of negligence. See cases noted in Steinmetz, Statutory Negligence in Oregon Automobile Law, 1 Willamette L J 503 (1961).

The court below interpreted the Nettleton case to hold that proof of any failure to comply with ORS 483.444 makes negligence irrelevant, and liability is imposed without fault. Under this rule, a defendant would never be permitted to present any evidence in excuse of a failure of a safety device required by law to be kept in good working condition. In Hills v. McGillvrey, Or., 402 P.2d 722, decided this day, the trial court took the contrary view and allowed the jury to consider a tendered excuse of a brake failure.

In the Nettleton case, a dictum suggested that a litigant charged with statutory negligence might show that his failure to have adequate brakes was caused by a latent defect in this equipment. The defendant now argues that the Nettleton dictum should be expanded to hold that facts other than latent defects may constitute a lawful excuse for a statutory violation involving safety equipment.

In the case at bar, the defendant offered to show that about one fourth of a mile before reaching the scene of the collision his truck had run over a trench in the road where a gas line was being installed. He argued that the jury could draw an inference that the bump had damaged his braking system. The defendant contends that he should be allowed to introduce his evidence in order to show that the damage to his brakes was caused by forces beyond his control and that he had no time in which to discover or remedy the sudden loss of brakes. We construe his offer of proof as an attempt to prove that compliance with the statute had been made impossible by forces over which he had no control.

Four choices are open. One is a view that is advocated in 2 Harper and James, The Law of Torts, § 17.6 (1956), and by other writers, to the effect that the violation of a statute is irrelevant. Under this view the burden of going forward with the evidence would not be affected by a violation of the statute. The reasonableness of the actor's conduct would be a question for the jury without reference to the statute.

The second choice is that the violation of the statute is prima facie evidence of negligence and creates a presumption which may be overcome by the violator showing that he was acting as a reasonable person would have acted under the circumstances even though he failed to comply with the statute.

The third choice is the one adopted by the trial court, and one which finds support in our earlier cases: that fault, as such, is irrelevant and that proof of failure for any reason to comply literally with a statutory standard of care constitutes conclusive proof of negligence regardless of the presence or absence of an excuse for such failure to comply. Nettleton v. James, supra; Daniels v. Riverview Dairy, 132 Or. 549, 287 P. 77 (1930); Foster v. Farra et al., 117 Or. 286, 293, 243 P. 778 (1926).

The fourth choice, and the one we adopt, is a modification of the third choice set forth above. Any violation of a statutory standard of care is negligence as a matter of law except that it may be excused where the party who failed to comply with the statute shows that his violation was caused by circumstances beyond his control and that it was, under the circumstances, impossible, regardless of the degree of care he might have exercised, for him to comply with the statute.

Under the preferred rule, if a litigant can prove that his adversary violated a statute enacted to regulate either the equipment or the operation of motor vehicles, he is entitled to an instruction that such conduct is negligence. The rule we adopt today modifies the negligence per se rule only in that the party found to be in violation of the statute is entitled to show, if he can, facts as indicated above that would excuse the violation. The same exception has been followed in cases involving statutory standards for the operation of vehicle. See, e. g., Raz v. Mills, 231 Or. 220, 372 P.2d 955 (1962), and Marshall v. Olson, 102 Or. 502, 512, 202 P. 736 (1922), both involving statutory rules other than those referring to safety equipment. In those cases, excuses have been deemed sufficient, if believed by the jury, to believe the violator of a statute from the consequences of his violation.

Our decision in Nettleton v. James, supra, was grounded in part upon an assumption that there was a legislative intent to impose civil liability upon violators of safety-equipment statutes regardless of the presence or absence of any sort of an excuse for the violation. We are now of the opinion that the motor vehicle code was not intended to eliminate the element of fault from the law of torts. While it is true that fault will be present in the vast preponderance of cases in which a litigant's conduct fails to meet a statutory standard, a litigant nonetheless has a right to prove, if he can, that his noncompliance was caused by circumstances beyond his control and that it was impossible, or regardless of his degree of care, for him to comply with the statute.

Accordingly, we apply to equipment defects the same rule we have applied in the past to operational errors. Liability in both situations is based upon fault rather than upon a theory of absolute liability. Nettleton v. James, supra, Daniels v. Riverview Dairy, supra, and Foster v. Farra et al., supra, to the extent that they impose liability without fault, are overruled.

Because the case comes to us by way of an exception to the exclusion of an offer of proof, the matter of instructing juries is not specifically before us. It has been argued, however, that any modification of the negligence-per-se rule will unduly complicate the submission of automobile collision cases to the jury.

Nothing in this decision is intended to alter the standard instruction on negligence as a matter of law as it is ordinarily given when one party alleges, and the other denies, that there has been a violation of a section of the motor vehicle code. See, e. g., Instruction No. 10.03, Oregon Jury Instructions for Civil Cases, which reads:

'In addition to common law negligence there is also statutory negligence, which consists of the violation of a law which, for safety or protection of others, requires certain acts or conduct, or forbids certain acts or conduct.

'Where I call your attention to any such law, a violation of such law is negligence in and of itself.'

In addition to the foregoing instruction, there should be given an additional instruction only when it has been admitted, or established by proof, that one party failed to comply with a section of the motor vehicle code but has offered evidence to show that his violation was legally excused. In such a case, the trial judge must rule as a matter of law whether the facts asserted as an excuse would, if true, constitute a lawful excuse for the violation. If the judge deems the alleged excuse legally sufficient, he should instruct the jury that if the jury believes the facts asserted as an excuse the statutory negligence rule would not apply to the excused conduct.

The jury would not, of course, be permitted to substitute its own standard of conduct for the one established by statute. If the jury finds that the person charged with violating the statute did violate the statute and had no legally sufficient excuse for doing so, that finding is conclusive on the issue of negligence.

The final, and decisive, question in the case at bar is whether the defendant driver's offer of proof measured up to the kind of evidence which, if believed, would have constituted a lawful excuse for his failure to keep his brakes in good working order. We hold that it would not.

The driver's testimony that he drove over a ditch in the road might indeed support an inference that bumping across the ditch cause his brakes to fail. This evidence, however, is not sufficient to go to the jury as an excuse. The offer does not show that if the bump was severe enough to cause damage to brakes that otherwise were in good condition the circumstances which damaged the brakes were beyond the...