Murphy v. Hawthorne

• Decision Date: 02 March 1926
• Citation: 244 P. 79,117 Or. 319
• Parties: MURPHY v. HAWTHORNE.
• Court: Oregon Supreme Court

244 P. 79

117 Or. 319

MURPHY v. HAWTHORNE.

Supreme Court of Oregon

March 2, 1926

Department 2.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Action by L. B. Murphy against J. M. S. Hawthorne to recover damages to plaintiff's automobile, sustained in collision with auto truck parked on highway after dark without a light. Judgment for plaintiff, for $374.40, and defendant appeals. Affirmed.

Robert F. Maguire, of Portland (Winter & Maguire, of Portland, on the brief), for appellant.

Frank C. Hesse, of Astoria (Norblad & Hesse, of Astoria, on the brief), for respondent.

BELT J.

About 6:30 o'clock in the evening, October 19, 1920, plaintiff was driving his Buick roadster on the lower Columbia River highway toward the city of Astoria. He says that he was traveling about 25 miles per hour on the right side of the road with spotlight and head lights on full strength. There was no oncoming traffic, but he was nearly in the middle of a procession of 10 or 12 cars traveling in the same direction and about the same rate of speed. A large passenger autobus going toward Astoria rapidly approached, sounded its horn and plaintiff turned over to the extreme right of the pavement to let it pass. When this bus went by it "kicked up" enough dust to "obstruct" plaintiff's vision, but he drove on at about the same rate of speed. Suddenly and unexpectedly there appeared within plaintiff's range of vision a 3-ton auto truck belonging to the defendant, which had been parked on the right side of the highway without any light. The left front and rear wheels of the truck were about 5 1/2 feet from the right edge of and on the pavement. Plaintiff testified that his automobile struck the left rear hub cap of the truck, and that this caused him to swerve to the left and into a ditch, although he did his best to avoid the collision. In response to the question, on cross-examination, "How far could you see in front of your car after that dust was raised by the passing bus?" plaintiff answered, "I wouldn't say whether 50 or 150 feet. I don't know; I was paying attention to my driving." When asked how far away he was when he first saw the truck, plaintiff testified, "I wouldn't say, because I don't recollect on account of the dust being in the air, whether 25 feet or 75 feet."

Under the undisputed testimony, we think it was negligence per se for defendant to leave this auto truck on the highway after dark without displaying a red light as provided by section 4774, Or. L. It was more necessary, so far as the safety of the public is concerned, to have such light on the truck when thus parked on the highway than it would be if it were moving. It would be contrary to the purpose and spirit of the statute so to construe it as being applicable only to motor vehicles in motion. Jaquith v. Worden, 132 P. 33, 73 Wash. 349, 48 L. R. A. (N. S.) 827; Berry on Automobiles (4th Ed.) §§ 188, 872; Babbitt on Motor Vehicles (3d Ed.) § 563.

Appellant's principal contention, aside from the question as to the proper measure of damages, is that we should hold as a matter of law that plaintiff was guilty of contributory negligence in failing to stop his automobile within the range of his vision. While some courts have announced a hard and fixed rule that it is negligence to drive an automobile at such rate of speed that it cannot be stopped within the range of the driver's vision ( Lauson v. Fond du Lac, 123 N.W. 629, 141 Wis. 57, 25 L. R. A. [ N. S.] 40, 135 Am. St Rep. 30; West Construction Co. v. White, 172 S.W 301, 130 Tenn. 520; Knoxville Ry. & Light Co. v. Vangilder, 178 S.W. 1117, 132 Tenn. 487, L. R. A. 1916A, 1111; Jones v. Sunshine Grocery & Market [Tex. Civ. App.] 236 S.W. 614), we think it improper to do so. Each case must be considered in the light of its own peculiar state of facts and circumstances. After all, the test is, what would an ordinarily prudent person have done under the circumstances as they then appeared to exist? Can we say that all reasonable minds would reach the conclusion that plaintiff failed to exercise due care to avoid this collision? We think not. Plaintiff had a right to assume, in the absence of notice to the contrary, that defendant would not put this dusty, gray colored truck on the highway after dark without displaying a red light on the rear thereof. If the truck had been lighted, the jury might well have drawn the reasonable inference that plaintiff would have been able to avoid striking it. As stated in Haynes v. Doxie, 198 P. 39, 52 Cal.App. 133:

"Notwithstanding the facts stated, it may also be true that if the truck had been lighted as required by law, plaintiff would have been able to see it, and would have seen it, while at a distance great enough to enable him to stop his automobile and avoid the collision."

In Hallett v. Crowell, 122 N.E. 264, 232 Mass. 344, it was said:

"The jury doubtless could find that the plaintiff's motorcycle, lighted as required by law, could be stopped at the rate of speed he was going within a distance of 15 feet and that he was about 25 feet distant when he saw the rear wheel of the defendant's unlighted farm wagon. But the defendant was violating the statute, and the jury could find that the plaintiff did not know the wagon was ahead until he observed the glitter of his own headlight upon the rim of the right outside rear wheel of the wagon, when, although driving at proper speed and immediately turning to the left as far as he could, he came into collision with the * * * wheel * * * and was injured severely. * * * It was therefore a pure question of fact whether under all the circumstances he exercised the care of the ordinarily prudent traveler."

In Corcoran v. City of New York, 80 N.E. 660, 188 N.Y. 131--a case involving a similar state of facts--we find this significant language:

"We are also of the opinion that the question of contributory negligence was one of fact for the consideration of the jury. The automobile was going at the rate of 8 to 10 miles an hour, and Noyes was shown to have been an experienced and careful operator. Although the testimony tends to show that this automobile, weighing 3,000 pounds, and going at the rate of from 8 to 10 miles an hour, could have been stopped in from 18 to 20 feet, it is still a question of fact whether under the conditions which existed the guard rail and fence were visible from a sufficient distance to make such a stop possible. It is true that one of the occupants of the tonneau testified that the fence could be distinguished at a distance of 15 feet, but that is by no means conclusive, for the plaintiff was entitled to the benefit of the legal principle that a traveler on a city street has the right to assume that all the parts thereof intended for travel are safe, and he is not open to the imputation of negligence if he fails to discern an unknown and concealed danger at the very instant necessary to prevent an impending disaster."

While there is authority to the contrary, we believe the better reasoned cases support the holding that whether plaintiff failed to exercise due care to avoid the collision was a question of fact for the jury. Wurl v. Watson, 228 P. 43, 67 Cal.App. 625; Haynes v. Doxie, supra; Ross v. Hoffman et al. (Mo. App.) 269 S.W. 679, distinguishing prior decisions of that court and considering Lauson v. Fond du Lac, supra, upon which appellant so much relies; Hatch v. Daniels, 117 A. 105, 96 Vt. 89; Tutsch v. Omaha Structural Steel Works, 194 N.W. 731, 110 Neb. 585; Bancroft v. Town of East Montpelier, 109 A. 39, 94 Vt. 163; Berry on Automobiles (4th Ed.) § 873. No error was committed in denying motions for nonsuit and directed verdict.

Appellan...