Morris v. Fitzwater

• Decision Date: 27 September 1949
• Citation: 210 P.2d 104,187 Or. 191
• Parties: MORRIS <I>v.</I> FITZWATER
• Court: Oregon Supreme Court

187 Or. 191

210 P.2d 104

MORRISv.

FITZWATER

Supreme Court of Oregon.

Argued September 7, 1949.

Reversed and remanded September 27, 1949.

Costs retaxed October 18, 1949.

Automobiles — "Disabled automobile"

1. Under the statute prohibiting parking a vehicle upon any highway except when disabled, an automobile is "disabled" when it cannot safely be moved under its own power. O.C.L.A. § 115-353.

See Words and Phrases, Permanent Edition, for other judicial constructions and definitions of "Disabled Automobile".

Automobiles — Whether auto could have been parked entirely off main traveled portion of highway was jury question

2. In action by owner of automobile standing partly on highway without lights on dark stormy night for injuries sustained when second automobile struck first from the rear, whether first automobile could have been parked entirely off main traveled portion, as required by statute except when vehicle is disabled, was for jury. O.C.L.A. § 115-353.

Appeal and error — Refusal to withdraw specification of contributory negligence which was merely an elaboration was not reversible error

3. Refusal to withdraw specification of contributory negligence alleging that although plaintiff had opportunity to park automobile off traveled portion of highway she failed to do so, which was merely an elaboration of specification that plaintiff was negligent in parking on paved portion of highway, was no reversible error.

Negligence — Duty to use ordinary care commensurate with danger to be avoided

4. The law imposes upon a person sui juris the obligation to use ordinary care for his own protection, the degree of which is commensurate with danger to be avoided.

Automobiles — Whether conduct of owner of vehicle was negligent was for the jury

5. In action by owner of automobile standing partly on highway without lights on dark, stormy night for injuries sustained when second automobile struck first from the rear, whether owner's conduct in remaining in standing automobile for three to five minutes before collision was negligent was for the jury. O.C.L.A. § 115-353.

Trial — Instruction — Exact statutory language not necessary

6. Where law governing a case is expressed in a statute, exact statutory language need not be used in instructing the jury if court in lieu thereof substitutes language of its own choosing equivalent to terms of the statute.

Trial — Requested instruction — Substantially inaccurate — Properly refused

7. Requested instruction which related to statute providing that no vehicle shall be left parked upon main traveled portion of highway except when disabled but which was substantially inaccurate in omitting factor of practicability of parking vehicle off paved portion was properly refused. O.C.L.A. § 115-353.

Automobiles — Instruction — Omitted statutory requirements — Inaccurate — Properly refused

8. Charge which stated that parking vehicle upon highway at night without lights was not negligent provided width of not less than 16 feet of main traveled portion was left unobstructed but which omitted statutory requirements of unobstructed view for 200 feet in each direction and of impracticability of parking off main traveled portion was inaccurate and properly refused. O.C.L.A. § 115-353.

Automobiles — Instruction — "Insurer" — Not objectionable

9. Use of term "insurer" in charge that portion of basic rule prohibiting driving of automobile at speed greater than will permit driver to exercise proper control does not mean driver is an insurer that he will not collide with automobile stopped upon highway was not objectionable as misleading. O.C.L.A. § 115-320(a).

Trial — Instruction — Invading province of jury — Objectionable

10. Where evidence as to existence of an emergency was conflicting, charge that defendant was not bound to anticipate that plaintiff's automobile would be disabled or left partly upon highway, and that he would not be liable if he kept a lookout and did not see the automobile in time to avoid the collision under emergency that existed was objectionable as invading the province of the jury. O.C.L.A. § 115-353.

Trial — Instruction — Commenting upon the evidence

11. Where evidence as to existence of an emergency was conflicting, instruction which throughout appeared to assume that automobile which struck another automobile standing partly on highway at night without lights was confronted with an emergency and which informed jury that assumed emergency was not brought about by defendant and that he was not responsible therefor was objectionable as commenting upon the evidence and invading the province of the jury. O.C.L.A. § 115-353.

Automobiles — Instruction — Not misleading although not clear

12. In action by owner of automobile standing partly on highway on dark stormy night without lights, portion of charge stating that if there was no time for second automobile to avoid collision after driver had knowledge of emergency situation, driver would not be responsible therefor, was not objectionable as misleading, although not clear. O.C.L.A. § 115-353.

Trial — Instruction — Argumentative

13. In action by owner of automobile standing on highway without lights on dark stormy night for injuries sustained when first was struck from the rear by second automobile, instruction commenting on emergency created by fact that lights of first vehicle went out, and effect on defendant's liability was objectionable as argumentative. O.C.L.A. § 115-353.

Automobiles — Instruction — Duty of owner of vehicle to remove vehicle entirely from highway

14. In action by owner of automobile standing on highway without lights on dark stormy night for injuries sustained when first vehicle was struck from the rear by second, charge that first vehicle could have been moved and that if there was room completely to remove it from highway, it was duty of owner to do so was not objectionable as informing jury that owner could not recover unless she had removed her vehicle entirely from the highway. O.C.L.A. § 115-353.

Automobiles — Instruction — Duty of plaintiff, if time afforded, to alight from vehicle and protect her own safety — Objectionable

15. In action by owner of automobile standing partly on highway without lights on dark stormy night for injuries sustained when second vehicle struck first from the rear, charge that if plaintiff could not remove vehicle, it was her duty, if time afforded, to alight and protect her own safety was objectionable as inviting jury to disregard standard of due care. O.C.L.A. § 115-353.

                  See: 73 A.L.R. 1074
                  5 Am. Jur. 685
                  60 C.J.S., Motor Vehicles § 332
                

Appeal from Circuit Court, Linn County.

VICTOR OLLIVER, Judge.

Wesley A. Franklin, of Portland, argued the cause for appellant. On the brief were Lord, Anderson & Franklin, of Portland.

Lou A. Recken, of Portland, argued the cause for respondent. On the brief were Senn, Recken & Recken, of Portland, and Weatherford & Thompson, of Albany.

Before BRAND, Acting Chief Justice, and BAILEY, HAY and PAGE, Justices.

Ermalee C. Morris sued Webb Fitzwater for personal injuries sustained in a collision between two automobiles.

The Circuit Court, Linn County, VICTOR OLLIVER, J., rendered judgment on a verdict for defendant, and plaintiff appealed.

The Supreme Court, HAY, J., reversed the judgment, and held that certain instructions erroneously invaded the province of the jury.

HAY, J.

At about ten o'clock in the evening of April 7, 1945, plaintiff, accompanied by her husband, was driving her automobile on the Albany-Lebanon highway, when suddenly, and without warning, the lights upon the automobile became extinguished. The night was dark and the weather was stormy. Plaintiff steered her car to the right side of the highway and brought it to a stop with the left rear wheel resting upon the paved portion of the highway and approximately 18 inches from the outer edge thereof. The paved portion was 22 feet wide. The right wheels of the car rested upon the shoulder of the highway, and testimony in plaintiff's behalf indicated that they were approximately six inches from the edge of the adjacent ditch or borrow-pit, although upon this point there was conflicting testimony. Plaintiff remained in the driver's seat and her husband got out of the car to investigate the reason for the lights having failed. While he was so engaged, a car driven by the defendant, and traveling in the same direction as plaintiff's car had been, collided with plaintiff's car from the rear. As a result of such collision, plaintiff suffered serious physical injuries.

Plaintiff brought this action against defendant, seeking to recover compensation for her injuries, and, in her complaint, charged him with negligent operation of his car in the following particulars: (1) in driving at a high and dangerous rate of speed, in view of the weather conditions, the state of traffic upon the highway, and the prevailing darkness; (2) in failing to have his car under control, so as to be able to stop it in time to avoid the collision; (3) in failing to observe plaintiff's automobile; and (4) in failing to reduce the speed of his car, or to apply the brakes thereto and stop so as to avoid the collision.

The defendant, by his answer, alleged that the collision was brought about by plaintiff's contributory negligence in the following particulars: (1) in parking her car upon the paved and traveled portion of the highway, contrary to the statute; (2) in failing to park her car off the traveled portion of the highway, although having had an opportunity to do so; (3) in remaining in a place of danger in her car when she had ample opportunity to remove herself to a place of safety before the collision occurred; and (4) in parking her car upon the highway without lights.

Trial by jury resulted in verdict and judgment for defendant, and plaintiff has appealed, assigning as error the giving and refusing of certain instructions to the jury.

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