Mennis v. Highland Trucking, Inc.

• Jurisdiction: Oregon
• Parties: Darr L. MENNIS, Respondent, v. HIGHLAND TRUCKING, INC., an Oregon corporation, and Bill Emerson, Appellants.
• Citation: Mennis v. Highland Trucking, Inc., 492 P.2d 464, 261 Or. 233 (Or. 1972)
• Court: Oregon Supreme Court
• Decision Date: 08 February 1972

Page 464

492 P.2d 464

261 Or. 233

Darr L. MENNIS, Respondent, v. HIGHLAND TRUCKING, INC., an Oregon corporation, and Bill Emerson, Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted Nov. 3, 1971.

Decided Jan. 12, 1972.

Rehearing Denied Feb. 8, 1972.

Asa L. Lewelling, Salem, argued the cause and filed the brief for appellants.

Malcolm F. Marsh, Salem, argued the cause for respondent. With him on the brief were Eric B. Lindauer, and Clark & Marsh, Salem.

HOWELL, Justice.

This is an action for damages for injuries suffered in a collision between plaintiff's pickup truck and a log truck owned by defendant Highland Trucking, Inc., and driven by defendant Emerson. A jury returned a verdict for defendants and the trial court granted plaintiff's motion for a new trial. Defendant appeal.

The accident occurred on June 10, 1969, on a narrow, single-land mountain road near the Detroit reservoir, with two tracks in the gravel marking the route of traffic. The plaintiff was driving his empty pickup in a southerly direction and defendant Emerson was driving a loaded log truck north. The accident occurred on a sharp blind curve, with a steep bank on plaintiff's side and a cliff on defendant's side. Brush was growing on both sides of the road. Plaintiff testified that he was traveling approximately 25 miles per hour and slowed down for the curve. When he saw defendant's truck about 60 to 75 feet in front of him, he drove as close as possible to the ditch at the foot of the bank on his right. Defendant Emerson testified that he approached the curve at approximately 20 miles per hour and first saw plaintiff approximately 50 feet away. Both vehicles were almost stopped at the time of the collision.

The plaintiff's motion for a new trial alleged various grounds, including failure of the court to direct a verdict in his favor; failure to remove all allegations of contributory negligence; and failure to instruct the jury that defendants were guilty of negligence as a matter of law for failing to drive on the right half of the highway and for failing to drive as close as practicable to the right-hand edge of the highway. ¹

The trial court allowed the motion for a new trial on the grounds that it had 'erred in refusing to direct the jury that the defendants were negligent as a matter of law in failing to drive as close as practicable to the right-hand side of the roadway and in failing to give plaintiff's vehicle at least one-half of the main traveled portion of the roadway.'

We believe that the issue was properly submitted to the jury and that the court erred in granting a new trial on these grounds.

'As a rule this court has refused to decide questions of negligence, especially in automobile accident cases, as a matter of law. Where there is evidence upon which the jury can base a determination, questions of negligence and contributory negligence are for the jury and not for the court.' Hess v. Larson, Or., 92 Adv.Sh. 1608, 1611, 486 P.2d 533, 535 (1971).

The statutes ORS 483.302 and 483.306, relating to the duty to drive on the right half of the highway, are not absolute. ORS 483.302 refers to 'highways of sufficient width' and 'as close as practicable' to the right-hand edge. ORS 483.306 requires drivers passing in opposite directions to give the other at least one-half of the main traveled portion of the roadway 'as nearly as possible.' Moreover, we have held that failure to drive on the right half of the road is not negligence per se if the driver was acting as a reasonably prudent person under the circumstances. Tokstad v. Lund, 255 Or. 305, 466 P.2d 938 (1970). In Tokstad the defendant drove around a stalled truck on the highway, slid across the center line on the snow-packed road, and collided with plaintiff's vehicle. This court held that defendant was not negligent as a matter of law if he went on the wrong side of the road through no fault of his own, if his actions were those of a reasonably prudent person. A jury could have reached the same conclusion in the instant case.

The road was described as being narrow--from 16 to 20 feet wide. Plaintiff's truck was six feet eight inches wide, and defendant's log truck was seven or eight feet wide. Vision on the single lane road at the blind curve was further obscured in both directions by the brush along the side. Unquestionably, plaintiff pulled to his extreme right as soon as he saw defendant's truck. However, he testified he was traveling at approximately 25 miles per hour before entering the curve, when he knew he could expect log trucks on the road. One of plaintiff's witnesses, who was a passenger in plaintiff's vehicle, testified 'two vehicles on that corner can't meet at 20 or 25 miles an hour and make the corner.' He also stated that the shoulder on defendant's side was from a foot to a foot and a half wide and then dropped off into a canyon. Another witness who lived in the area and was familiar with the road and curve in question, when asked concerning the width of the road, stated:

'A I wouldn't care to meet two pickups on the same curve and try to pass.

'Q Why is that?

'A Because the road just doesn't warrant it on that curve. It just isn't wide enough to be considered a safe place for any two vehicles to meet at all.'

Another witness stated the road was wide enough for a log truck and a pickup to pass on the curve 'if everybody would stop and take their time.'

The defendant Emerson testified that he was driving in the gravel tracks in the road. He stated:

'Right there where the accident happened if I had been over much, I'd be right on the edge of the cliff side which could have gave way and the whole truck and me and all would have gone over.'

The evidence presented a question for the jury to decide whether the highway was of sufficient width, whether Emerson drove his truck 'as close as practicable' to the right-hand side of the road, and whether he gave plaintiff one-half of the main traveled portion of the road 'as nearly as possible,' as mentioned in the two statutes.

The plaintiff's motion for a new trial charged that the court erred in refusing his motion to remove defendants' allegations of contributory negligence from the jury. The charges were lookout, speed and control. In Hess v. Larson, Supra, we stated that lookout, speed and control are interrelated, and in most cases it is proper, if not necessary, that the jury consider them together.

The allegations of contributory negligence were properly submitted to the jury. Plaintiff knew the road was narrow and that he could expect to meet logging trucks; that he could expect to find the truck in the two gravel tracks in the road; and that he knew it was necessary to either slow down or to stop in order to pass. One of plaintiff's witnesses testified that while two vehicles could pass, 'you can't do her at any speed.' Plaintiff admitted traveling at approximately 25 miles per hour before entering the curve. The jury could find that a lesser speed would have allowed more time for the drivers to have seen one another and to have acted accordingly.

The trial court properly refused to strike defendants' allegations of contributory negligence.

We have considered the other grounds urged by plaintiff in his motion for a new trial and...