Moudy v. Boylan

• Decision Date: 23 December 1959
• Citation: 219 Or. 448,347 P.2d 983
• Parties: Ella M. MOUDY, Appellant, v. C. E. BOYLAN, Defendant, and Mrs. C. E. Boylan and Marvin K. Boylan, Respondents.
• Court: Oregon Supreme Court

Page 983

347 P.2d 983

219 Or. 448

Ella M. MOUDY, Appellant, v. C. E. BOYLAN, Defendant, and Mrs. C. E. Boylan and Marvin K. Boylan, Respondents.

Supreme Court of Oregon, Department 2.

Argued Nov. 19, 1959.

Decided Dec. 23, 1959.

Robert L. McKee and Nels Peterson, Portland, argued the cause and filed briefs for appellant.

John C. Beatty, Jr., Portland, argued the cause for respondents. With him on the brief was Herbert M. Schwab, Portland.

Before McALLISTER, C. J., and ROSSMAN, SLOAN and KING, JJ.

KING, Justice pro tem.

This is an action for damages for personal injuries arising out of an automobile collision between a car which the plaintiff, Ella M. Moudy, was driving and one being driven by the defendant Marvin K. Boylan.

The jury returned a verdict for the defendant, and after a motion for new trial was denied, the plaintiff brought this appeal.

The principal question involved is whether the trial court should have instructed the jury that the defendant was negligent as a matter of law, that his negligence proximately caused the collision, and that the plaintiff was not guilty of contributory negligence. And, therefore, the jury should have been allowed only to determine the extent of plaintiff's injuries and the amount of damages.

On July 2, 1955, at about 10 o'clock p. m. the plaintiff, Ella M. Moudy, was driving a 1949 Plymouth sedan south on N. E. Union Avenue in Portland, Oregon. Her husband was riding in the front seat beside her and was holding their baby in his lap. Their other two small children were in the back seat of the car.

The defendant Marvin K. Boylan was driving north on N. E. Union Avenue, in a 1946 Pontiac sedan owned by his father and mother, Mr. and Mrs. C. E. Boylan. He had as a passenger beside him a young boy named Arthur Horset.

N. E. Union Avenue was a four-lane street. Two lanes were for southerly traffic and two lanes were for northerly traffic. The plaintiff was driving in the outside or westerly lane southerly toward Hassalo Street, a two-lane street running east and west which intersects Union Avenue at right angles. The defendant was driving in the inside lane of Union Avenue going north as he approached the intersection with Hassalo Street. As he reached Hassalo Street he turned left to go west thereon, and the collision took place with plaintiff's car in the intersection. The exact point of the collision was not pointed out. The damage was very light to both cars and both could leave on their own power.

Plaintiff's first assignment of error is as follows:

'The Court erred in failing to give the following instruction requested by the plaintiff:

"You are instructed that under the defendant's testimony he was guilty of negligence as a matter of law in the operation of his motor vehicle at the time and place alleged in plaintiff's second amended complaint. You are further instructed that said negligence was the proximate cause of the collision with plaintiff's motor vehicle.

"You are further instructed that under all the evidence of this case, the plaintiff in the operation of her motor vehicle, was not guilty of negligence which contributed to her injuries, if any. Therefore, the only question which you will determine in this case is the nature and extent of plaintiff's injuries proximately resulting from the collision complained of, and the amount of plaintiff's damages, general and special."

In order to get defendant Marvin K. Boylan's version of the accident, we will set forth parts of his testimony. On direct examination he testified as follows:

'Q. All right. Now would you tell us--about how fast were you driving as you were driving along Union before you slowed down for your turn? A. About thirty, sir, before the turn.

'Q. And will you tell us in your own language just what happened. A. Yes, sir. I had stopped at a stop light before Hassalo.

'Q. About how far before Hassalo? A. One block, sir. And when the light changed then I had proceeded through and as I came into Hassalo to make my left turn I had--there was a group of cars coming southbound on the other two lanes, and as those cars disappeared and got by I thought that there was no other cars coming southbound on those two lanes. I shifted my car into second to make my turn and at that moment I looked in the rear view mirror to see if there was any other car approaching from the rear, and I started my swing into it and the boy that was riding with me told me 'Look out,' there was a car, and I looked up and I applied my brakes at the moment of the impact.

'Q. All right. That is the first time you saw or noticed the Moudy car was when this boy yelled to look out. A. That's right, sir.'

On cross-examination the defendant testified that he was driving in his left lane and passed several cars that were going south in the block immediately before he got to Hassalo Street; that the last one he passed was 100 or 150 feet before he arrived at Hassalo Street.

He was then asked the following questions and gave the following answers:

'Q. And you approached there. Did you give a signal? A. No, sir.

'Q. You gave no signal for a left turn? A. That's right.

'Q. And your window was open? A. That's right.

'Q. Was there a car back of you? A. He had just--well, I don't know when he came in behind.

'Q. Well, I am asking you at the time you approached here (indicating) and after you passed the last car going south was there a car back of you going in the same direction? A. Yes.

'Q. And when did you first see that car? A. When I was in the process of changing from high to low to second to make my turn, I looked in the rear view----

'Q. (Interposing) That is the first time you looked in there? A. That's right.

'Q. And where was that other car? A. He was probably four or five car lengths behind.

'Q. In the same lane of travel as you? A. That's right.

'Q. And so you were looking in the rear view mirror; is that correct? A. Momentarily, yes.

'Q. But you gave no signal? A. That's right.

'Q. Now, then you made a turn; is that correct? A. Correct.

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'Q. Now, Mr. Boylan, did you see the other car with which your car collided before the impact? A. No.

'Q. You didn't see it at all? A. No. I would have swore that there was no other car coming southbound at any time.

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'Q. What would you estimate your speed at the moment of impact? A. About fifteen, maybe twenty.

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'A. The reason I made my left-hand turn was that I had thought and still think that I did not see her and I did not see an approaching car before I made my left-hand turn, and I took for granted that it was all clear and that I had the right and the privilege to make a left-hand turn as normal proceeding of turning from one direction to another direction.'

The above covers substantially all the pertinent testimony of the defendant on direct and cross-examination relative to the accident itself, with the exception of some questions and answers given at the blackboard and in demonstrating positions of the cars to the jury, which are not made plain by the transcript.

The plaintiff, Mrs. Moudy, testified on direct examination regarding the accident and events immediately subsequent as follows:

'Q. Mrs. Moudy, would you tell the jury in your own language what occurred as you were driving that car south on Union Avenue on that day? A. Yes. It was just a real nice day, and we just were going along sort of slow and easy, and I was in the outside lane of the southbound traffic, and there just wasn't any traffic immediately on either side or following me, and the next thing I noticed, just as I entered Hassalo, this car just swerved right in front of me, and that's all there was to it. He hit me.

'Q. What kind of a car was it? A. It was a light blue, I think, and gray Pontiac.

'Q. Now, Mrs. Moudy, about at that point, as you were traveling, what was your approximate speed? A. Oh, 20 to 25 miles an hour.

'Q. Did the operator of that car give any signal? A. No.

'Q. Was there any sound by horn or otherwise? A. No.

'Q. Was there any signal by a mechanical device? A. No.

'Q. Or signal by arm? A. No, there was no signal.

'Q. Mrs. Moudy, how long in point of time did you see the other car before the impact? A. I didn't see--I didn't pay any particular attention to him until he turned, and it was such a shock, I immediately put on my brakes.

'Q. In point of time, how much time would you estimate elapsed between the time he turned and the collision? A. A matter of seconds.'

On cross-examination the plaintiff was asked and answered the following questions relative to statements she made in her deposition:

'Mr. Schwab: Page 4. 'Where was he when you first saw him, his car?' You said, 'He was coming up the street.' 'Well, about how far away from you?' 'Well, he was just about to make the turn, which would probably be maybe 100 feet away.'

'Do you recall that?

'The Witness: Yes, sir.

'Q. Then I said, 'About how far away?' You said, 'I suppose 100 feet. I don't know much about it.' Then I said, 'Was he at the intersection when you first saw him?' And your answer was, 'Yes.' A. Yes.

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'Q. But at any rate, when you first saw him, he was in the act of turning; is that correct? A. Yes.'

The above testimony of plaintiff and defendant constitutes practically all the testimony in the case regarding the accident and its cause. Mr. Moudy, who was riding beside the plaintiff, did not see the defendant's car until the collision. The Horset boy, riding with the defendant, did not testify. Mr. Erceg, who was in business at Union and Hassalo Streets, heard the noise but did not see the collision. The policeman who was called to the scene a few minutes after the collision did not testify. Thus we must decide the question posed almost entirely from plaintiff's and defendant's testimony.

The requested instruction is very general in its terms. First it asks that the court instruct the jury that the defendant was negligent. It does not point out...